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Housing Court Judge MARYLOU MUIRHEAD, cases from 2013 to mid-2014

Docket No.:NO. 13H84SP000703

Parties:CATHERINE RICH-DUVAL,[1] Plaintiff v. SYLVIA SMITH, Defendant

Judge:/s/ MARYLOU MUIRHEAD

Date:March 28, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on March 14, 2013. The Plaintiff seeks possession of Unit 1 at 2 Putnam Street in the East Boston neighborhood of Boston (the “Premises”) based on the Defendant’s failure to pay rent. The Defendant filed an answer alleging breach of warranty of habitability and interference with quiet enjoyment. She did not serve a copy of answer on the Plaintiff. Accordingly the Defendant will be allowed to assert defenses, but her counterclaims are transferred to the regular civil docket.

Based on the all the credible testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Defendant has occupied the Premises since some time in 2010. The tenancy was subject to a lease, but that lease expired and the Defendant remained as a tenant at will. At all times relevant hereto, the agreed upon rent has been $1,050.00 a month, due on the first of the month.

The last time the Defendant was current in her rent was in November 2011. (Exhibit “3”).

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[1]This is the Plaintiffs last name. The clerk’s office shall correct MassCourts and the docket.

 

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For the period of time beginning in December 2011 and continuing through the date of trial, if the Defendant had paid her rent in full, she would have paid $16,800.00. She has only paid $7,650.00. As of the date of trial, the Defendant owes $9,150.00 in past due rent. (Exhibit “3”).

The Defendant admits receipt of a notice to quit for non-payment of rent dated January 13, 2013 (Exhibit “2”) and does not challenge the sufficiency thereof.

To defend against a claim for possession based upon a claim of breach of warranty of habitability, the Defendant must establish that there was a material breach of the implied warranty of habitability. Factors to be considered in making a determination as to whether a breach was material include the seriousness of the claimed defect and its effect on the habitability of the premises, the length of time the defect persists, whether or when the plaintiff or its agent received notice of the defect, the possibility that the residence could be made habitable in a reasonable time and whether the breach resulted from abnormal conduct or use by the defendant.

The Defendant testified that the second floor tenant has access to her unit through a door to the common hallway. The Plaintiff denied this. The Defendant presented no support for this allegation and the court finds that she has not met her burden of proof with respect to her claim that the breach of warranty of habitability arises out of the second floor tenant’s access to her unit.

The Defendant further testified that the common area lights are connected to the meter that services her unit. She bases this on her observation that the lights in the common area were out when her lights were out. While the court credits that this happened it is mereley an observation and, without some support for her claim, the court finds that the Defendant has not met her

 

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burden of proof that her claim for breach of warranty of habitability arises out of a problem with the metering.

Finally, the Defendant testified that the tenant upstairs died in the unit and was not discovered for a significant period of time and as a result there has been a strong odor that has permeated the Premises. The Plaintiff testified that the unit has been cleaned and painted and that she has received no complaints from the Defendant since that occurred. The Defendant maintains that she told her nephew, the maintenance man. The Defendant has the burden of proof with respect to this claim and has presented no support for her testimony that the odor from the second floor unit is a breach of the warranty of habitability.

The Defendant’s defense of interference with quiet enjoyment arises out of the same facts as her claim for breach of warranty of habitability. To prevail on this defense, she must prove that the Plaintiffs conduct with respect to these facts was at least reckless or negligent; that the Plaintiff famed to act reasonably under the circumstances concerning a problem known to her and that the natural and, probable consequences of such failure caused the interference with the Defendant’s quiet enjoyment of the Premises. There is no evidence, testimonial or otherwise to support such a claim.

The court finds that he Defendant has not met her burden of proof with respect to her defenses.

The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $9,150.00, and the Defendant has not established a legal defense.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of

 

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the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiff for possession and damages in the amount of $9,150.00.
2.Execution to issue in the usual course.

 

SO ORDERED.
/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

March 28, 2013

 
Docket No.:NO. 12H84SP003505

Parties:ISAIS BERMUDEZ[1] and ODILIA BERMUDEZ, Plaintiffs v ELIZABETH ANDERSON, Defendant

Judge:/s/ MARYLOU MUIRHEAD

Date:April 5, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for a bench trial on March 6, 2013.[2] The Plaintiffs seek possession of Unit 2 at 5 Atherton Street in the Roxbury neighborhood of Boston (the “Premises”), based on the Defendant’s “failure to vacate or pay past rent due in full after being served notice to quit on 8/7/12 [sic].” The Defendant timely filed an answer alleging retaliation, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B with respect to a security deposit, interference with quiet enjoyment and violation of G.L. c. 93A arising out of late fees and unlawful terms in her lease.

Based on all the credible testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Plaintiffs acquired the two unit building in which the Premises are located in 2005.

 

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[1]This is the correct spelling of the Plaintiffs name. The clerk’s office shall correct the docket and Mass Courts.

 

[2]The Defendant had originally demanded a jury trial, but the parties executed a jury waiver on February 7, 2013.

 

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The Defendant was living at the Premises at the time of the acquisition. On September 7, 2005, the parties executed a tenancy at will agreement memorializing a tenancy that began on February 1, 2005. (Exhibit “3”). The parties agreed that the rent would be $1,200.00 a month and due on the first of the month.

The Defendant has not paid rent since January 2012 and, as of March 6, 2013, owes $16,800.00 in past due rent.[3] By order dated October 11, 2012, the court (Winik, F.J.) ordered the Defendant to pay use and occupancy to the Plaintiffs each month, on the fifteenth of the month, beginning October 15, 2012 and continuing until the matter is concluded. The Defendant complied with the order and made full payment of $1,000.00 in the months of October, November, January and February, but only paid $935.00 in December. (Exhibit “1”). The payment for March was not due as of the date of the trial.

The Defendant admits receipt of the notice to quit dated August 6, 2012 (Exhibit “2”) and does not challenge the sufficiency thereof.

The court finds that the Plaintiffs have established a prima facie case for possession and damages in the amount of $11,865.00 after crediting the monies held in escrow,[4] subject to the Defendant’s defenses and counterclaims.

The Defendant bears the burden of proof as to her claims and defenses. There was no evidence, testimonial or otherwise, that the Defendant ever paid a security deposit to the Plaintiffs or a prior landlord. There was also no evidence, testimonial or otherwise, to establish that the Plaintiffs ever charged the Defendant late fees, that there was a lease between the parties or that there were

 

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[3]February 2012 through March 2013 = 14 months. 14 x $1,200.00 = $16,800.00.

 

[4]$16,800.00 – $4,935.00 = $11,865.00.

 

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unlawful terms in the tenancy at will agreement. (Exhibit “3”). Judgment will enter for the Plaintiffs on the Defendant’s counterclaims for violation of G.L. c. 186, sec. 15B and G.L. c. 93A.

Under the retaliation statute service of a notice to quit for any reason other than the failure to pay rent can be considered an act of reprisal if the tenant engaged in an act protected under G.L. c. 186, sec. 18. There is a presumption of retaliation, in cases other than non-payment of rent, if the landlord serves the tenant with a notice to quit within six months of the tenant having engaged in a protected activity. (G.L. c. 186, sec. 18). While there is no presumption of retaliation, a tenant in a non-payment case can still assert a claim of retaliation, but must affirmatively prove that the landlord retaliated against him or her. This case is based on the Defendant’s failure to pay rent. She is not entitled to a presumption of retaliation and to prevail on her claim, she must present affirmative evidence of reprisal. There was no evidence, testimonial or otherwise, to establish that this case was brought in reprisal for the Defendant having engaged in a protected activity. The Defendant has failed to meet her burden of proof and judgment will enter for the Plaintiffs as to the claim for retaliation.

To recover monetary damages from the Plaintiffs based upon a claim of breach of warranty of habitability, the Defendant must establish that there was a material breach of the implied warranty of habitability. Material means something of importance. The existence of a material breach of the implied warranty of habitability is a question of fact to be determined in the circumstances of each case.

Based on a review of the evidence, the Defendant has established that there was a material breach of the warranty of habitability. (Exhibit “5”). The conditions identified by the City of Boston Inspectional Services Department (“ISD”) in its abatement orders dated February 1, 2012 con-

 

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stitute a material breach of the warranty of habitability and existed through July 20, 2012 (Exhibit “11 “), a period of one hundred and sixty-eight days. During this time, the value of the Premises was reduced by thirty-five percent. As a result, the Defendant is entitled to a rent credit of $2,320.08.

The court further finds that the Defendant cannot defend against the claim for possession or recover damages from the Plaintiffs based on breach of warranty of habitability arising out of the ISD abatement orders dated May 16 (Exhibit “5”) and October 12, 2012 (Exhibit “7”), as the Defendant failed to meet her burden of proof to establish that the Plaintiffs were aware of the conditions cited therein before the dates on which the abatement orders were received by them.

Finally, the court finds that the conditions observed by Mr. Neville on December 7, 2012 and March 2013 do not constitute a material breach of the warranty of habitability.

Judgment will enter for the Defendant on her claim for breach of warranty of habitability in the amount of $2,320.08

A landlord is liable for interference with quiet enjoyment if the landlord caused or permitted acts which resulted in substantial disturbance or injury to the tenant in his or her peaceful enjoyment of the premises. A claim of violation of the covenant of quiet enjoyment, similarly to a claim of negligence, requires some degree of fault or forseeability on the part of the landlord. The Defendant must prove that the Plaintiffs failed to act reasonably under the circumstances concerning a problem known to her and that the natural and probable consequences of such failure caused the interference with the Defendant’s quiet enjoyment of the premises. It is the landlord’s conduct and not his intentions that determines whether there was a violation of the covenant of quiet enjoyment. To prevail on this claim, the Defendant must prove that the Plaintiffs were negligent with regard to the issues on which her claim is based. The court finds that the Plaintiffs were negli-

 

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gent with respect to the metering of the electricity for the common elements at 5 Atherton Street and their negligence constitutes an interference with the Defendant’s quiet enjoyment of the Premises. The Defendant, having prevailed on this claim, is entitled to monetary damages. The law on quiet enjoyment provides that a person who commits any act in violation of the quiet enjoyment statute shall be liable for actual damages or three months rent, whichever is greater. The Defendant did not present any evidence, testimonial or otherwise, regarding actual damages, and the court is constrained to assess damages in the amount of three month’s rent — $3,600.00. Judgment will enter for the Defendant on her claim for interference with quiet enjoyment for $3,600.00.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiffs for possession and damages in the amount of $16,800.00. The Plaintiffs may apply the funds currently being held in escrow pursuant to the order of October 11, 2012. This results in a judgment for damages in the amount of $11,865.00.

 

2.Judgment enter for the Plaintiffs on the Defendant’s claims of retaliation and violation of G.L. c. 186, sec. 15B and G.L. c. 93A.

 

3.Judgment enter for the Defendant on her claim of breach of warranty of habitability in the amount of $2,320.08.

 

4.Judgment enter for the Defendant on her claim of breach of interference with quiet enjoyment in the amount of $3,600.00.

 

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5.This results in a total award of damages in favor of the Defendant the amount of $5,920.08.

 

6.The parties may set off the Plaintiffs’ damages against the damages awarded to the Defendant. This results in a net judgment in favor of the Plaintiffs in the amount of $5,944.92.

 

7.Pursuant to the fifth paragraph of M.G.L. c. 239, sec. 8A, if within ten days of the date of this order, the Defendant pays. $5,920.08 to counsel for the Plaintiffs, judgment shall enter for the Defendant for possession. Payment shall be by money order or certified check, payable to counsel for the Plaintiffs and delivered to the her. Counsel shall file an affidavit of payment on the eleventh day. If the payment is not made, judgment shall automatically enter in favor of the Plaintiffs for possession on the next business day following the receipt of the affidavit of counsel.

 

SO ORDERED.

 

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

April 5, 2013

 

 
Docket No.:No. 13H84SP002384

Parties:JANICE MONROE-ROBERTS, Plaintiff V TANESE LAMAR and BRANDI JENKINS, Defendants

Judge:/s/ MARYLOU MUIRHEAD

Date:June 24, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on June 20, 2013. The Plaintiff seeks possession of Unit 1 at 16 Hallam Street in the Dorchester neighborhood of Boston (the “Premises”) and monetary damages based on the Defendants’ failure to pay rent. The Defendants filed an answer denying that they owe rent and claims of alleging retaliation, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B with respect to last month’s rent, interference with quiet enjoyment and violation of G.L. c. 93A.

Based on the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Plaintiff is the owner of the three unit building at 16 Hallam Street in Dorchester. The Premises are located on the first floor. The Defendants occupy the Premises as tenants at will. The parties signed a document dated February 2, 2012, which states the rent, the date on which the rent is due. (Exhibit “1”).

The agreed upon rent is $1,190.00 a month and rent is due on the fifth of the month. (Ex-

 

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hibit “1”). There is no dispute that the Defendants failed to pay rent for the months of May and June 2013 and, as of the day of trial, the past due rent is $2,380.00.

The Defendants admit receipt of the notice to quit for non-payment of rent (Exhibit “2”) and do not challenge the sufficiency thereof The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $2,380.00, subject to the Defendants’ defenses and counterclaims of retaliation, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B with respect to last month’s rent, interference with quiet enjoyment and violation of G.L. c. 93A.

As a preliminary matter, there was no evidence, testimonial or otherwise relative to the Defendants’ claim of violation of G.L. c. 186, sec. 15B with respect to last month’s rent and that claim is DISMISSED, without prejudice.

There is no dispute that the Defendants contacted the Plaintiff on or about April 24, 2013 to inform her that the lock which secures the door to the Premises was broken and the door could not be locked. When the Plaintiff did not respond, the Defendants contacted City of Boston Inspectional Services Department (“ISD”). Subsequent to learning of the need to repair the lock on the door to the Premises, and that the Defendants had contacted ISD, the Plaintiff caused the Defendants to receive a notice of rent increase and a notice to quit for non-payment of rent. (Exhibits “2” and “6”). The notice of rent increase (Exhibit “6”) was sent at a time the Defendants were current in their rent; as a result, the Defendants are entitled to a presumption that the instant action was commenced in retaliation for the Defendants having notified the Plaintiff and ISD of the existence of conditions at the Premises that potentially violated the state sanitary code. The Plaintiff presented no evidence sufficient to overcome the presumption of retaliation and there-

 

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fore the Defendants are entitled to statutory damages of two month’s rent, which is $2,380.00.

With respect to the Defendants’ claim of breach of warranty of habitability, the court finds that the Plaintiff was aware that the door to the Premises did not lock at a time that the Defendants’ were current in their rent. (Exhibit “3”). The court further finds that the inability to secure the door to the Premises constitutes a breach of the warranty of habitability and reduced the value of the Premises by fifty percent during the time the condition existed, specifically from April 24, 2013 until May 3, 2013, a period of nine days. In addition, the Plaintiff never repaired the lock. It was the Defendants who replaced the lock, at their own expense. (Exhibit “5”). The Defendants are entitled to a rent credit of $176.04[1] and the cost incurred by the Defendants to repair the lock $180.00 (Exhibit “5”).

The court further finds that the remaining conditions cited by ISD (Exhibit “3”) also constitutes a breach of the warranty of habitability and reduced the value of the Premises by twenty percent during the time the conditions existed, specifically from April 24, 2013 until May 30, 2013, a period of 36 days. The Defendants are entitled to a rent credit of $281.52.[2]

The Defendants are entitled to damages totaling $637.56 on their claim of breach of warranty of habitability.

To establish a claim for violation of the covenant of quiet enjoyment, the Defendants must prove that the Plaintiff engaged in acts or failed to act while under a duty to act, which directly or indirectly caused a serious interference with the use and quiet enjoyment of the Premises; this means that the Plaintiff failed to act reasonably under the circumstances concerning a

 

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[1]Damage is calculated as follows. $1,190.00/month x 12 months =$14,280.00 ann. $14,280 4- 365 days = $39.12/day. .5 x $39.12 = $19.56. $19.56 x 9 days = $176.04.

 

[2]Damage is calculated as follows. $1,190.00/month x 12 months =$14,280.00 ann. $14,280 + 365 days = $39.12/day. .2 x $39.12 = $7.82/ day. $7.82 x 36 days = $281.52.

 

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problem known to her and that the natural and probable consequences of such failure caused the interference with the Defendants’ quiet enjoyment of the premises. The Plaintiff’s conduct and not her intentions determine whether there was a violation of the covenant of quiet enjoyment.

The court finds that the actions of the Plaintiff with respect to the failure to promptly replace the lock on the door to the Premises violates the provisions of G.L. c. 186, sec. 14 and constitutes interference their quiet enjoyment. Because there was no evidence of actual damages presented by the Defendants, the statute entitles them to three months’ rent, which is $3,570.00.

Because the Defendants’ claim for interference with quiet enjoyment arises out of the same facts that form one of the bases for their claims of breach of warranty of habitability, the Defendants cannot recover under both claims, but will recover under the claim that yields the greater result and that is the quiet enjoyment claim.

Finally, the court finds that the actions of the Plaintiff with respect to the failure to promptly replace the lock on the door to the Premises and attempting to increase the Defendants’ rent after learning of conditions at the Premises which constitute violations of the state sanitary code constitute a violation G.L. c. 93A, as the Plaintiff is involved in trade or commerce. The Defendants are entitled to multiple damages as a result of the violation. However, the damages under the retaliation claim and quiet enjoyment claim constitute multiple damages, so the court will only double the damages under the breach of warranty claim. This results in damages in the amount of $563.04.[3]

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial, in light of the gov-

 

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[3]$281.52 x 2 = $563.04.

 

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erning law, it is ORDERED that

 

1.Judgment enter for the Defendants for possession.

2.Judgment enter for the Plaintiff for monetary damages in the amount of $2,380.00, subject to the Defendants’ defenses and counterclaims.

3.The Defendants’ claim of violation of G.L. c. 186, sec. 15B is DISMISSED, without prejudice.

4.Judgment enter for the Defendants on their claim of retaliation in the amount of $2,380.00.

5.Judgment enter for the Defendants on their claim of breach of warranty of habitability for damages in the amount of $281.52 (arising out of conditions other than the lock).

6.Judgment enter for the Defendants on their claim of interference with quiet enjoyment, arising out of the failure to repair the lock, in the amount of $3,570.00.

7.Judgment enter for the Defendants on their claim of violation of G.L. c. 93A in the amount of $563.04.

8.This results in a total judgment for the Defendants in the amount of $6,513.04.[4] This can be used to offset the judgment for the Plaintiff and results in a net judgment for the Defendants in the amount of $4,133.04

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

June 24, 2013

 

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[4]$2,380.00 +$563.04 +$3,570.00 = $6,513.04

 

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Docket No.:No. 13H84SP004790

Parties:RONALD MAJORS, JR., Plaintiff v CLARISSA ROBINSON and ROSS WRIGHT, Defendants

Judge:/s/ MARYLOU MUIRHEAD

Date:January 23, 2014

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND INTERIM ORDER

 

This matter was before the court for trial on January 16, 2014. The Plaintiff seeks possession of Unit 3 at 5 19 Wolcott Street in the Dorchester neighborhood of Boston (the “Premises”) based on the Defendants’ failure to pay rent. The Defendants filed an answer alleging retaliation, breach of warranty of habitability, violation of G.L. c. 186 sec. 15B with respect to both a security deposit and last month’s rent, interference with quiet enjoyment violation of G.L. c. 93A, intentional infliction of emotional distress and negligent failure to maintain premises [sic].

Based on the all the credible testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Plaintiff owns and occupies the property at 19 Wolcott Street, there the Premises are located. From November 14, 2012 through November 30, 2013, the Defendants occupied the Premises pursuant to a written lease (Exhibit “2”). The lease expired on November 30, 2013.

The agreed upon rent is $1,100.00 a month and rent is due on the first day of the month. The Plaintiff has received rent in full through July 2013. The court credits this testimony. Although there is evidence that the Defendants purchased money orders in July, August and Sep-

 

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tember 2013, there is no evidence that the money orders were paid over to the Plaintiff or that if the Plaintiff received the money orders, the funds should have been applied to any month after July 2013. The court finds that as of the date of trial, the Defendants owe $6,600.00 in past due rent.

The Defendants admit receipt of a notice to quit for non-payment of rent (Exhibit “1”) and do not challenge the sufficiency thereof.

The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $6,600.00, subject to the Defendants’ defenses and counterclaims of retaliation, breach of warranty of habitability, violation of G.L. c. 186 sec. 15B with respect to both a security deposit and last month’s rent, interference with quiet enjoyment violation of G.L. c. 93A, intentional infliction of emotional distress and negligent failure to maintain premises [sic]. The Defendants have the burden of proof to establish each element of each of their defenses and counterclaims.

As a preliminary matter, there was no evidence, testimonial or otherwise, to support the Defendants’ claims of violation of G.L. c. 93A, intentional infliction of emotional distress or negligent failure to maintain premises. Judgment will enter for the Plaintiff on these claims.

 

Retaliation

 

To prevail on the defense of retaliation, the Defendants must prove that they engaged in a protected activity and that the Plaintiff served them with either a written notice to quit or took action to recover possession of the Premises within six months of their having engaged in a protected activity. Once the presumption is established, the Plaintiff may rebut the claim with evidence that such action was not a reprisal against the Defendants and that the Plaintiff had suffi-

 

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cient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, even if the Defendants had not engaged in a protected activity. There is no dispute that the Defendants contacted the City of Boston Inspectional Services (“ISD”) in October 2103 and that this case was commenced after the Plaintiff was made aware thereof

With respect to their defense of retaliation, the court finds that the Defendants are entitled to a presumption of retaliation, but the court further finds that because the Defendants owed three months’ rent at the time the Plaintiff commenced this action, the Plaintiff had sufficient independent justification for taking commencing this case.

The standard is different with respect to the Defendants’ counterclaim. In the instance of a counterclaim, the Defendants are not entitled to a presumption of retaliation in a case for nonpayment of rent.

The Defendants are still entitled to assert both the defense and counterclaim of retaliation, but must prove that the eviction is in retaliation for participation in a protected activity. The Defendants relied solely on the presumption of retaliation and presented no affirmative evidence, testimonial or otherwise, to establish retaliation. Judgment will enter or the Plaintiff on the Defendants’ claim of retaliation.

 

Breach of Warranty of Habitability.

 

To prevail on their claim of breach of warranty of habitability, the Defendants must prove that the Plaintiff had knowledge of the conditions upon which the claim is based before they were behind in their rent. The Defendants base their claim on two types of conditions; the existence of lead based paint at the Premises (Exhibit “7”) and other miscellaneous violations of the

 

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state sanitary code. (Exhibits “5,” “6” and “7”).

At the inception of the Defendants’ tenancy the parties executed a lead disclosure form. The form states that the Plaintiff had no knowledge of the existence of lead paint. (Exhibit “2”). While the Plaintiff testified that he assumed there was lead based paint at the property because of the age of the building, an assumption is not knowledge. The Plaintiff testified, however that he had the Premises inspected for lead based paint in February and became aware of the presence of lead based pain at that time. There is a child under the age of six residing at the Premises.

The court finds that the presence of lead based paint in a residential property occupied by a child under the age of six is a material breach of the implied warranty of habitability and that the Plaintiff was aware of the condition before the Defendants were behind in their rent. Because there was no evidence to establish the date on which the Plaintiff became aware of the presence of lead paint, the court finds that the Plaintiff was aware of the lead based paint as of March 1, 2013 and, as of the date of the trial had been aware of the condition for a period of three hundred and twelve days. The court further finds that the presence of lead based paint at the Premises reduced the fair market value of $1,100.00 a month by twenty percent. As a result, the Defendants are entitled to a rent credit of $2,255.76.[1]

There was no evidence that the Plaintiff was aware of the other conditions identified by ISD (Exhibits “5,” “6” and “8”) before the Defendants were behind in their rent and therefore, the Defendants’ cannot prevail on their claim of breach of warranty of habitability based on those claims.

Judgment will enter for the Defendants on their claim of breach of warranty of habitability in the amount of $2,255.76.

 

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[1] $1,100.00 x 12 mos. = $13,200.00 ÷ 365 days = $36.16/day. .20 x 36.16 = $7.23/day x 312 days = $2,255.76.

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Violation of G.L. c. 186 sec. 15B with respect to both a Security Deposit and Last Month’s Rent

 

While the Defendants may assert a claim for violation of G.L. c. 186, sec. 15B as a counterclaim in this action, if a violation is found, it does not constitute a defense to the Plaintiff’s claim of possession.

The Defendants assert that at the inception of their tenancy they paid first month’s rent, last month’s rent and a security deposit of $550.00. The lease between the parties shows that the Plaintiff accepted a pro-rated rent of $550.00 for the first month of the tenancy and a security deposit of $550.00. The Defendants presented money order receipts showing that they purchased money orders totalling $2,200.00 on November 14, 2012. (Exhibit “10”). The Plaintiff admits that he accepted a security deposit of $550.00 at the inception of the Defendants’ tenancy. The court will accept that the Defendants paid $2,200.00 at the inception of their tenancy as a pro-rated first month’s rent of $550.00, a security deposit of $550.00 and last month’s rent of $1,100.00.

The security deposit statute, G.L. c. 186, sec. 15B, imposes strict requirements that must be followed by every landlord who accepts a security deposit from a residential tenant. Section (3)(a) of the statute provides that a landlord must place the security deposit in “a separate, interest bearing account in a bank within the commonwealth under such terms as will place such deposit beyond the claim of the creditors or the lessor . . . . Failure to comply with this paragraph shall entitle the tenant to the immediate return of the security deposit.” The landlord forfeits his right to retain a security deposit for any reason where he has failed to comply with the statute, and upon demand, must promptly return the deposit to the tenant. See Castenholz v Caira, 21 Mass.App.Ct. 758 (1986).

 

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Section 7 of the statute provides that the tenant is entitled to damages “in an amount equal to three times the amount of the such security deposit or balance thereof . . . plus interest at the rate of five percent from the date when such payment becomes due,” together with court costs and reasonable attorneys’ fees, where the landlord fails to promptly return the deposit upon demand.

The Defendants’ Answer filed on or about November 4, 2013 constitutes a demand for the return of the security deposit. As of the date of the trial, more than two months later, the deposit had not yet been returned to the Defendants. Accordingly, the Defendants are entitled to damages on this claim in the amount of three times the security deposit. Judgment will enter for the Defendants on their claim for violation of G.L. c. 186, sec. 15B with respect to their security deposit in the amount of $1,650.00 and reasonable attorney’s fees incurred with respect to the security deposit claim.

The last month’s rent is rent paid by a tenant to a landlord in advance and does not have to be deposited in a bank account or handled in any special way. However, within thirty days of the anniversary of the tenancy, a tenant is entitled to interest on the last month’s rent at a rate of five percent per year or whatever lesser rate is paid by the bank on the account in which the money is deposited. The tenancy in this case was created on November 14, 2012. The claim for violation of c. 186, sec. 15B relative to the last month’s rent was filed on November 4, 2013. As of the date the answer was filed the Defendants were not entitled to interest on their last month’s rent. The claim had not arisen on the date the answer was filed and judgment will enter for the Plaintiff with respect to the Defendants’ claim for violation of c. 186, sec. 15B relative to the last month’s rent.

 

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Interference with Quiet Enjoyment Based on Conditions at the Premises

 

The Plaintiff is liable for interference with quiet enjoyment if he caused or permitted acts which resulted in substantial disturbance or injury to the Defendants in their peaceful enjoyment of the premises. The Defendants must prove that the Plaintiff’s conduct was at least reckless or negligent. This means that the Defendants must prove that the Plaintiff failed to act reasonably under the circumstances concerning a problem known to the Plaintiff and that the natural and probable consequences of such failure caused the interference with the Defendants’ quiet enjoyment of the Premises. The Plaintiff’s conduct and not his intentions determine whether there was a violation of the covenant of quiet enjoyment. There was evidence at trial that the Plaintiff made some attempts to make repairs at the Premises and that there were occasions that the Defendants denied access. The court credits this testimony. The Defendants presented no credible evidence to demonstrate the Plaintiff’s negligence.

Based on the credible evidence presented at trial, the court cannot find that the Plaintiff’s conduct to be reckless or negligent. Judgment will enter for the Plaintiff on this claim.

 

INTERIM ORDER

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiff for monetary damages in the amount of $6,600.00.

 

2.Judgment enter for the Defendants on their claim for breach of warranty of habitability in the amount of $2,255.76.

 

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3.Judgment enter for the Defendants on their claim for violation of G.L. c 186, sec. 15B with respect to their security deposit in the amount of $1,650.00 and reasonable attorney’s fees incurred in connection therewith.

 

4.Within ten days from the date hereof, counsel for the Defendants is to file an affidavit with respect to attorney’s fees incurred with respect only to the claim of violation of G.L. c. 186, sec. 15B.

 

5.Judgment enter for the Plaintiff with respect to the Defendants’ remaining counterclaims.

 

6.The parties may set off the damages awarded to the Defendants against the damages awarded to the Plaintiff. This results in a net judgment of $2,694.24 in favor of the Plaintiff.

 

7.Pursuant to the fifth paragraph of M.G.L. c. 239, sec. 8A, if within ten days of the date hereof, the Defendants pay $2,395.25[2] into court, judgment shall enter for the Defendants for possession. Payment shall be by money order or certified check, payable to the Clerk of the Boston Housing Court. Payment may be released to the Plaintiff upon receipt. If the payment is not made, judgment shall automatically enter in favor of the Plaintiff for possession on the next business day and the execution shall issue in the usual course.

 

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

January 23, 2014

 

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[2] $6,600.00 – $3,905.76 = $2,694.24.

 

 

 
Docket No.:No. 131184SP001428

Parties:JEFF HALL, Plaintiff V DERRICK YOUNG, Defendant

Judge:/s/ MARYLOU MUIRHEAD

Date:May 7, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on April 11, 2013. The Plaintiff is seeking to recover possession of 51 Waldek Street in the Dorchester neighborhood of Boston (the “Premises”) based on the Defendant’s failure to pay rent. The Defendant filed an answer denying liability and alleging that his tenancy was not properly terminated and the Summary Process Summons and Complaint were not properly served. The Defendant has also asserted counterclaims of retaliation (based on the filing of complaints with the Massachusetts Commission Against Discrimination and the Ethics Commission), breach of warranty of habitability, interference with quiet enjoyment (arising out of the failure to pay for utilities, the conditions of the Premises, entry into the Premises without permission, and claims for having been billed for hot water and utilities) and violation of G.L. c. 93A.

 

Background

 

This is the third summary process action commenced by the Plaintiff against this Defendant for non-payment of rent in less than a year. (See Hall v Young 12H84SP003942 and Hall v

 

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Young 13H84SP000110). In addition to the eviction cases, there was a civil action between the parties (Hall v Young 12H84CV000976) relative to the Plaintiff’s need for access to the Premises and a criminal action against the Defendant[1] (12H84CV000149), also for access to the Premises.

In Hall v Young 12H84SP003942,[2] the Plaintiff sought to recover unpaid rent for the months of August, September and October 2012. After trial, judgment entered in favor of the Defendant for possession and monetary damages in the amount of $1,500.00.

Approximately one month after the order in Hall v Young 12H84SP003942, the Plaintiff obtained a temporary restraining order against the Defendant allowing him access to the Premises to correct issues of cross-metering. That order is dated December 11, 2012. (See Hall v Young 12H 84CV000976).

The second summary process action, Hall v Young 13H84SP000110,[3] was commenced to recover unpaid rent for the months of November and December 2012 and January and February 2013.

The court (Winik, F.J.) prohibited the Defendant from asserting affirmative defense or counterclaims involving allegations prior to November 5, 2012 (the date of the first judgment) and, after trial, the Defendant was again allowed to retain possession, but, after setting off the Defendant’s damages against the amount of rent owed to the Plaintiff, the Plaintiff was entitled to monetary damages for unpaid rent in the amount of $3,000.00.

 

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[1]While the abatement order issued to the Defendant references a notice of violation issued to the owner/management company, there is no evidence of such an order before the court and no case against the Plaintiff arising out of allegations of violations of the state sanitary code.

 

[2]Hall v Young 12H84SP003942 was commenced in October 2012.

 

[3]Hall v Young 13H84SP000110 was commenced in January 2013.

 

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In the interim period, on February 6, 2013, the City of Boston Inspectional Services Department issued an abatement order against the Defendant to gain access to inspect the Premises and exterminate, probable cause was found and a criminal complaint issued. (See ISD v Derrick Young 13H84CR000149). The case against the Defendant was closed on March 11, 2013 and the case dismissed on March 26, 2013.

 

Matter Before the Court

 

Based on the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Premises consist of a single unit in a two unit condominium at 51 Waldek Street, which the Defendant occupies as a tenant at will, pursuant to the terms of a written lease that expired on August 31, 2012. (Exhibit “2”). At all times relevant hereto, the agreed upon rent has been $1,500.00 a month, due on the first of the month. There is no dispute that the Defendant has not paid rent for the months of March and April 2013 and owes $3,000.00 in unpaid rent.

On March 5, 2013, the Plaintiff caused the Defendant to receive a legally sufficient notice to quit for non-payment of rent. (Exhibits “1” and “3”). The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $3,000.00, subject to the Defendant’s defenses and counterclaims.

The Defendant has asserted counterclaims of retaliation (based on the filing of a complaint with the Massachusetts Commission Against Discrimination and the Ethics Commission), breach of warranty of habitability, interference with quiet enjoyment (arising out of the failure to pay for utilities, the conditions of the Premises, entry into the Premises without permission, and claims for having been billed for hot water and utilities), and violation of G.L. c. 93A. The De-

 

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fendant cannot assert counterclaims in this action involving allegations prior to February 14, 2013 (the date of the judgment in Hall v Young 13H84SP000110).

There was no evidence, testimonial or otherwise, to support the Defendant’s claims of retaliation (based on the filing of complaints with the Massachusetts Commission Against Discrimination and the Ethics Commission), interference with quiet enjoyment (arising out of the failure to pay for utilities, entry into the Premises without permission, and claims for having been billed for hot water and utilities), and violation of G.L. c. 93A. Judgment will enter for the Plaintiff on those claims.

With respect to the Defendant’s remaining claims, breach of warranty of habitability and interference with quiet enjoyment arising out of the conditions at the Premises, the Defendant alleges the presence of rodents at the Premises. To defend against a claim for possession based on allegations of breach of warranty of habitability and/or interference with quiet enjoyment arising out of the presence of rodents at the Premises, the Defendant must prove that the Plaintiff was aware of the presence of rodents before the Defendant was behind in his rent. The earliest communication regarding the need for extermination was in February 2013. (Exhibit “4”). The Defendant has been behind in his rent since December 2013. As a result, he cannot defend against the Plaintiff’s claim based on the alleged presence of rodents.

Even if the Defendant could establish that the Plaintiff was aware of the presence of rodents before he was delinquent in the payment of rent, there was no evidence to support that the presence of rodents constituted a material breach of the warranty of habitability and it is clear that the Plaintiff was thwarted in his attempt to address the issue by the Defendant’s actions. Judgment will enter for the Plaintiff on these claims.

 

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ORDER FOR JUDGMENT

 

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiff for possession and monetary damages in the amount of $3,000.00.

 

2.Judgment enter for the Plaintiff on the Defendant’s counterclaims.

3.Execution to issue the usual course.

 

SO ORDERED.
/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

May 7, 2013

 

 
Docket No.:No. 13H84SP002057

Parties:ALLAN HECTOR and CYNTHIA RODRIGUEZ HECTOR, Plaintiffs PHILLIP OFUME[1], Defendant

Judge:/s/ MARYLOU MUIRHEAD

Date:June 19, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on June May 30 and June 7, 2013. The Plaintiff seeks possession of Unit 1 at 41 Gallivan Boulevard in the Dorchester neighborhood of Boston (the “Premises”) based on the Defendant’s failure to pay rent. The Defendant filed a document entitled “Defendant’s Opposition and Counterclaim to Plaintiff’s [sic] Complaint,” which the court will accept as an answer. The document asserts that the Defendant’s tenancy was not properly terminate and counterclaims of retaliation, breach of warranty of habitability, interference with quiet enjoyment, and violation of G.L. c. 93A.

To the extent that the Defendant has asserted claims against National Grid, N-Star and/or the Boston Water and Sewer Commission, same are DISMISSED. These entities are not a party to this action and the Defendant did not file a motion to join them pursuant to Mass.R.Civ.P. 19

 

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[1]So much of this case as seeks possession against persons identified in the complaint solely as “and family,” the case is DISMISSED. Summary Process actions are personal in nature and cannot lie against persons identified only as “and family.”

 

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or 20.[2] More importantly, the Defendant filed a case against National Grid, N-Star and/or the Boston Water and Sewer Commission in the Suffolk Superior Court on May 10, 2013, which was prior to the date the Answer was filed in the instant action.

Based on the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Plaintiffs are the owners of the two family dwelling at 41 Gallivan Boulevard. They occupy the second floor and the Premises are located on the first floor. The Plaintiffs are members of the Fountain of Grace Church in Canton, Massachusetts. On or about June 13, 2012, Ms. Hector received a telephone call from the pastor of Fountain of Grace Church asking her if she would accept the Defendant as a tenant at the Premises. The unit was vacant and the Defendant and his family were homeless.

The Plaintiffs agreed and, on June 13, 2012, the parties executed a short term lease which allowed the Defendant to occupy the Premises from June 13 through June 30, 2012 at a rent of $400.00. Ms. Hector provided the court with a copy the “short term lease” (Exhibit “1”) and testified that the document was altered after it was executed. The court credits this testimony. There is no dispute that rent was paid and it was credited to the time period of June 13 through 30, 2012. (See Exhibit “16,” receipt no. 076309)

Ms. Hector further testified that the parties agreed if the Defendant remained at the Premises after June 30, 2012, the rent would be $750.00 a month. The Defendant testified that the

 

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[2]Error! Main Document Only. The Plaintiff is not absolved of complying with the Rules of Civil Procedure by virtue of the fact that he represents himself. A self-represented litigant is bound by the same rules of procedure as litigants with counsel. International Fidelity Ins. Co. v Wilson, 387 Mass. 841, 847 (1983) (citations omitted). Judges are obligated to apply the law without regard to the litigant’s status as a self-represented party. (See Guideline 1.4 of the Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants (2010))

 

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parties agreed that the rent would be $400.00 as long as he remained at the Premises. The court credits the testimony of Ms. Hector. There is no dispute that the Fountain of Grace Church paid the rent to the Plaintiffs to be credited as rent for the Defendant in July 2012 in the amount of $750.00. (See Exhibit “15,” receipt 076313).

Rent for the months of August, September and October, 2012 was paid by the Church of Jesus Christ of Latter Day Saints by check in the amount of $1,928.09. This left a balance due in the amount of $321.91. (Exhibit “12”). The Plaintiffs accepted $300.00 from the Defendant on October 24, 2012. (Exhibit “17”).

In November 2012, the Plaintiffs received a check from the Church of Jesus Christ of Latter Day Saints in the amount of $3,825.32 as rent for the Defendant. (Exhibit “2”). The Plaintiffs negotiated the check, credited the Defendant for $1,500.00, representing rent for the months of November and December 2012 and returned $2,352.32 to the Church of Jesus Christ of Latter Day Saints. (Exhibit “3”). Ms. Hector testified that the Church of Jesus Christ of Latter Day Saints did not accept her check and instructed her to apply the remaining $2,352.32 to the Defendant’s rent. It was credited to the months of January, February, and March 2012. This left the Defendant with a rent credit of $102.32 for the month of April 2012.[3]

The Defendant did not pay rent for the month of April 2012. On April 23, 2013, the Plaintiffs caused the Defendant to receive a notice to quit for non-payment of rent. (Exhibit “5”). The notice was delivered to the Defendant in hand by a constable. (Exhibit “5”). The court finds that the Defendant received the notice to quit (Exhibit “5”) and that it was legally sufficient to terminate the Defendant’s right to continued occupancy of the Premises.

 

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[3]$750.00 x 3 = $2,250.00. $2,352.32 – $2,250.00 = $102.32.

 

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Since the receipt of the notice to quit (Exhibit “5”) the Defendant has made no further payments to the Plaintiffs. As of the date of the trial, the Defendant owes $2,147.68 in past due rent.[4]

The court finds that the Plaintiffs have established a prima fade case for possession and damages in the amount of $2,147.68, subject to the Defendant’s defenses and counterclaims of violation of G.L. c. 93A, retaliation, breach of warranty of habitability and interference with quiet enjoyment.

 

Claim for Violation of G.L. c. 93A

 

It is settled that the owner-occupant of a two family dwelling is not “engaged in trade or commerce” within the meaning of the G.L. c.93A secs. 1(b) and 2(a). Billings v Wilson, 397 Mass. 614, 493 N.E.2d 187 (1986) (owner-occupied two-family dwelling); Sayah v Hatzipetro, 397 Mass. 1004, 492 N.E.2d 1131(1986) (same), Young v Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987) (owner-occupied three-family dwelling). There is no dispute that the Premises are located in a two-family owner occupied dwelling. Accordingly, the Plaintiffs cannot be held liable to the Defendant for violation of G.L. c. 93A. Judgment will enter for the Plaintiffs on this claim.

 

Retaliation

 

Under the retaliation statute, a landlord may not threaten to or take reprisal against a tenant for engaging in certain activities called protected activities. The protected activities are commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential

 

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[4]$750.00 x 3 (April, May and June) = $2,250.00. $2,250.00 – $102.32 = $2,147.68.

 

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premises; or exercising the tenant’s rights pursuant to section one hundred and twenty-four D of chapter one hundred and sixty-four; or reporting to the board of health or, in the city of Boston to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises a violation or a suspected violation of any health or building code or of any other municipal by-law or ordinance, or state or federal law or regulation which has as its objective the regulation of residential premises; or reporting or complaining of such violation or suspected violation in writing to the landlord or to the agent of the landlord; or for organizing or joining a tenants’ union or similar organization, or for making or expressing an intention to make, a payment of rent to an organization of unit owners pursuant to paragraph (c) of section six of chapter one hundred and eighty-three A. Most of the Defendant’s allegations relative to his claim of retaliation are inscrutable. However, there was evidence at trial that the Defendant contacted the City of Boston Inspectional Services Department (“ISD”) to report a violation or a suspected violation of any health or building code. (Exhibit “14”). That abatement order is dated April 11, 2013.

AS of April 11, 2013, the Defendant was behind in his rent and had not himself paid any rent since October 2012. He is not entitled to a presumption of retaliation and must provide affirmative evidence of retaliation. There was no such evidence, testimonial or otherwise presented by the Defendant at trial to establish his claim of retaliation. The court finds that the Defendant has failed to meet his burden of proof with respect to his claim of retaliation. Judgment will enter for the Plaintiffs on this claim.

 

Breach of Warranty of Habitability

 

To prevail on his claim of breach of warranty of habitability, the Defendant must prove

 

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that the Plaintiffs were aware of conditions at the Premises which breached the warranty before the Defendant was behind in his rent. The only credible evidence at trial of conditions at the Premises which could form the basis for a claim is set forth in an abatement order dated April 11, 2013. (Exhibit “14”). As of April 11, 2013, the Defendant was in arrears with respect to the payment of rent. There was no evidence, testimonial or otherwise that the Plaintiffs were aware of the conditions cited by ISD prior to April 11, 2013.

In addition, Ms. Hector testified credibly that upon learning of the conditions at the Premises, she acted promptly to make the necessary repairs, but was prevented from so doing by the Defendant. The Defendant has not met his burden of proof on his claim of breach of warranty of habitability.

Judgment will enter for the Plaintiffs on this claim.

 

Interference with Quiet Enjoyment

 

A landlord may not directly or indirectly interfere with the quiet enjoyment of any residential premises by its occupant. The covenant of quiet enjoyment exists by statute and protects an occupant’s right to freedom from “serious interferences” with their occupancy — that is, acts or omissions which substantially impair the character and value of the leased premises.

To establish a claim for violation of the covenant of quiet enjoyment, the Defendant must prove that the Plaintiffs engaged in acts or failed to act while under a duty to act, that directly or indirectly caused a serious interference with her use and quiet enjoyment of the leased premises.

Violation of the covenant of quiet enjoyment requires some degree of fault or foreseeability on the part of the Plaintiffs. The Defendant must prove that the Plaintiffs’ conduct was at least reckless or negligent.

 

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To the extent that the Defendant bases his claim of breach of quiet enjoyment on the existence of the conditions identified by ISD (Exhibit “14”), the claim must fail. As with the claim for breach of warranty of habitability, the Defendant cannot prevail on his condition based claim for breach of warranty of habitability unless he can prove that the Plaintiffs were aware of the conditions before he was in arrears with regard to his rent. There was no such evidence at trial and even if there was, there was no evidence that the Plaintiffs were negligent with respect to the need for repairs.

The Defendant’s claim for interference with quiet enjoyment based on allegations in the Answer relative to utility payments must also fail. There was no evidence or testimony from either party regarding utility service.

Judgment will enter for the Plaintiffs on this claim.

To the extent that the Defendant has asserted any other claims in his answer, same are unintelligible. Such claims are dismissed as the Defendant has failed to set forth a short and plain statement of the claim showing that the pleader is entitled to relief as required by the Rules of Civil Procedure.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial, in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiffs for possession and monetary damages in the amount of $2,147.68.

2.Judgment enter for the Plaintiffs on the Defendant’s counterclaims of retaliation, breach of warranty of habitability, interference with quiet en-

 

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joyment relative to the conditions at the Premises and the utility claim and violation of G.L. c. 93A.

3.All other counterclaims, to the extent that the Defendant intended to assert any, are DISMISSED.

4.Execution to issue in the usual course.

 

SO ORDERED.

 

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

June 19, 2013

 

 

 
Docket No.:SUMMARY PROCESS NO. 12H84SP004846

Parties:AMAL RIZKALLAH, Plaintiff v CARLA JACKSON, Defendant

Judge:/s/ MARYLOU MUIRHEAD

Date:January 11, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This matter was before the court for trial on January 3, 2012. The Plaintiff seeks possession of Unit 3 at 4057 Washington Street in the Roslindale neighborhood of Boston (the “Premises”) based on the termination of a tenancy at will. The Plaintiff also seeks monetary damages based on the Defendant’s failure to pay rent for the months of November and December 2012 and. January 2013. The Defendant filed an answer denying that she owes any money and alleging retaliation, breach of warranty of habitability, interference with quiet enjoyment, violation of the statute regarding security deposits and violation of the consumer protection statute.

Based on the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Defendant has occupied the Premises since July 15, 2009. The first two years of her tenancy were subject to written lease agreements. (Exhibits “1” and “2”). The parties did not execute a third lease at the expiration of the second and the Defendant became a tenant at will, under the same terms and conditions as those set out in the leases. At all times relevant hereto, the

 

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agreed upon rent has been $1,300.00 a month, due on the first of

the month.

By notice dated and received by the Defendant on October 29, 2012, the Plaintiff notified the Defendant that her tenancy was terminated “without cause.” (Exhibit “3”). Thereafter, the Defendant has not paid rent and owes $3,900.00 in past due rent.

The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $3,900.00, subject to the Defendant’s claims and defenses.

The Defendant testified that there is evidence of leakage on the kitchen floor and the faucet leaks. She further testified that there are problems with door knobs and that the front door “did not settle right” after a repair. The Defendant acknowledges that she never informed the Plaintiff of these issues in writing and never called the City of Boston Department of Inspectional Services until after she received the notice to quit. Accepting without finding that the conditions exist and the Plaintiff was informed thereof, the conditions do not constitute a breach of the warranty of habitability or interference with quiet enjoyment. Moreover, because the Defendant could not provide any evidence, testimonial or otherwise, to establish when she informed the Plaintiff of these conditions, the court finds that she has not met her burden of proof with respect to her claim of retaliation. Judgment will enter for the Plaintiff on these claims.

The parties agree that, at the inception of the tenancy at issue, the Defendant paid the Plaintiff a security deposit in the amount of $1,300.00. The Plaintiff acknowledged receipt of the deposit as a security deposit and provided her with a copy of a deposit slip. (Exhibit “4”). The lease between the parties supports the Defendant’s testimony. (Exhibit “1”). There was no evidence that the Plaintiff provided the Defendant with the receipt required under G.L. c. 186,

 

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sec. 15B or placed the funds in an account that complies with the statute.[1] As a result, the Defendant was entitled to the immediate return of the security deposit when she filed her answer. The Plaintiff did not return the deposit and the Defendant is entitled to damages in the amount of three times the security deposit or $3,900.00.

The Defendant has requested that she be given time to vacate. Because this case was commenced without cause (See Exhibit “3”), the court has the authority to stay the issuance of the execution. The court will stay the issuance of the execution through February 29, 2013, provided that the Defendant tender payment of use and occupancy for March 2013 in full and on time and refrain from committing any actions that constitute interference with quiet enjoyment of the other residents. If the Defendant fails to comply with the terms of this order, the Plaintiff may file a motion to issue the execution sooner, provided however that if the motion is based on interference with quiet enjoyment, the Plaintiff must bring a witness to court to testify.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial, in light of the governing law, it is ORDERED that

 

 

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[1](2)(b) Any lessor or his agent who receives a security deposit from a tenant or prospective tenant shall give said tenant or prospective tenant at the time of receiving such security deposit a receipt indicating the amount of such security deposit, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom such security deposit is received, the date on which it is received, and a description of the premises leased or rented. Said receipt shall be signed by the person receiving the security deposit.

3)(a) Any security deposit received by such lessor shall be held in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor, including a foreclosing mortgagee or trustee in bankruptcy, and as will provide for its transfer to a subsequent owner of said property. A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.

 

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1.Judgment enter for the Plaintiff for possession and damages in the amount of $3,900.00.

2.Issuance of the execution is stayed to March 1, 2012, provided that the Defendant tender payment of use and occupancy for March 2013 in full and on time and refrain from committing any actions that constitute interference with the quiet enjoyment of the other residents. If the Defendant fails to comply with the terms of this order, the Plaintiff may file a motion to issue the execution sooner, provided however that if the motion is based on interference with quiet enjoyment, the Plaintiff must bring a witness to court to testify.

3.Judgment enter for the Defendant on her claim for violation of the security deposit statute for damages in the amount of $3,900.00. The parties may set off the judgments, which results in neither party recovering monetary damages.

4.Judgment for the Plaintiff on all of the Defendant’s other counterclaims.

SO ORDERED.

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

January 11, 2013

 

 

 

 

Docket No.:SUMMARY PROCESS NO. 121184SP004216

Parties:HAMID U. QURESHI, Plaintiff V URSULA ANDERSON, Defendant

Judge:/s/ MARYLOU MUIRHEAD

Date:January 17, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND CORRECTED ORDER FOR JUDGMENT

This matter was before the court for trial on November 29, 2012. The Plaintiff seeks possession of Unit 2R at 3 Forbes Street in the Jamaica Plain neighborhood of Boston (the “Premises”) based on the termination of a lease and seeking monetary damages. The Defendant filed an answer alleging retaliation and breach of warranty of habitability, interference with quiet enjoyment and violation regarding the statute regulating last month’s rent.

Based on the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Defendant occupies the Premises pursuant to the terms of a written lease dated January 31, 2012. (Exhibit “1”). The lease, which identifies the Plaintiff as the landlord and provides that agreed upon rent is $1,200.00 per month, expired on August 31, 2012.

By letter dated February 14, 2012, the Defendant informed the Plaintiff of conditions which existed at the Premises at the inception of her tenancy and a separate list of conditions

which she believed constituted violations of the state sanitary code. (Exhibit “5”). There was no

 

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response from the Plaintiff and the Defendant sent a second notice to the Plaintiff dated March 1, 2012. (Exhibit “5”).[1]

On March 10, 2012, the City of Boston Inspectional Services Department (“ISD”) issued a notice to the Plaintiff of violations of the state sanitary code at the Premises. The notice (Exhibit “2”) identifies eighteen violations (Exhibit “2”), thirteen of which were also identified in the Defendant’s communications to the Plaintiff dated March 1 and 2, 2012. (Exhibit “5”).

By letter dated March 30, 2012, the Defendant informed the Plaintiff that, as a result of the conditions at the Premises, she was withholding $600.00 of the rent for the month of April. (Exhibit “5”). As of May 1, 2012, approximately one half of the conditions identified by ISD were repaired and the Defendant informed the Plaintiff that, beginning with the month of May, she would withhold $300.00 of the rent each month until the items were repaired. (Exhibit “8”). By separate letters of the same date, the Defendant informed the Plaintiff of complaints regarding noise in Unit 1 and three further matters that needed to be repaired. (Exhibit “8”).

The Defendant withheld $150.00 of the rent for June 2012 and resumed paying full rent in July.

By letters dated August 1 and 8 and September 1, 2012 the Defendant reiterated her cony plaint relative to the noise from Unit 1. (Exhibits “6,” “7” and “8”).

On August 8, 2012, ISD issued a notice to the Plaintiff that lights in certain common areas were connected to the meter servicing the Premises, that the smoke detectors at the Premises were in disrepair, there was trash in the basement and that the basement lights did not work pro-

 

 

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[1]Both the February 14 and March 1, 2012 notices were sent certified mail. The receipt for the March 1, 2012 notice is part of Exhibit “5.” There is no evidence that the February 14, 2012 letter was returned to the Defendant.

 

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perly. (Exhibit “3”).

The Plaintiff caused the Defendant to receive a legally sufficient notice terminating the Defendant’s tenancy on September 1, 2012. (Exhibit “4”).

The court finds that the Plaintiff established a prima facie case for possession, subject to the Defendant’s defenses and counterclaims.

Under the retaliation statute, a landlord may not threaten to or take reprisal against a tenant for commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises, contacting ISD to report a violation or suspected violation of any health or building code, and / or reporting or complaining of such violation or suspected violation in writing to the landlord or the landlord’s agents. We call these protected activities. To prevail on the claim of retaliation, the Defendant must prove that she engaged in a protected activity and that the Plaintiff served her with either a written notice to quit or a notice increasing her rent within six months of her having engaged in a protected activity. Once the presumption is established, the Plaintiff may rebut the claim by clear and convincing evidence that such action was not a reprisal against the tenant and that the Plaintiff had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, even if the tenant had not commenced any legal action, made such report or engaged in such activity. There is no dispute that this action was commenced within six months of the Defendant having contacted ISD and the Plaintiff presented no evidence of another reason to commence summary process that was clear and convincing. In fact, the Plaintiff testified that he did

 

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not want to continue the tenancy because of the Defendant’s contact with ISD. As a result, the Defendant is entitled to judgment on her claim for retaliation and the court awards her possession of the Premises and damages in the amount of two month’s rent ($2,400.00).

The Defendant is entitled to a rent abatement, in whole or in part, during the period in which material defective conditions, which either render the premises uninhabitable or may endanger or impair the health, safety and well-being of the persons occupying the premises, exist at the Premises after the Plaintiff had notice thereof. There is no dispute that there were conditions which constitute a violation of the state sanitary code at the Premises from the inception of the Defendant’s tenancy and the court Ends that the Plaintiff knew or should have known of the existence of those conditions. The court further finds that the conditions existed through September 1, 2012, a period of two hundred and thirteen days and reduced the value of the Premises by twenty percent during that time. The Defendant is entitled to possession of the Premises and a rent abatement in the amount of $1,680.57.

To establish a claim for violation of the covenant of quiet enjoyment, the Defendant must prove that the Plaintiff engaged in acts or failed to act while under a duty to act, that directly or indirectly caused a serious interference with her use and quiet enjoyment of the premises — that is an act or omission that substantially impaired the character and value of the Premises. Violation of the covenant of quiet enjoyment requires some degree of fault or foreseeability on the part of the Plaintiff. The Defendant must prove that the Plaintiff’s conduct was at least reckless or negligent. This means that the Defendant must prove that the Plaintiff failed to act reasonably under the circumstances concerning a problem known to the Plaintiff and that the natural and probable consequences of such failure caused the interference with the Defendant’s quiet enjoyment of the Pren-

 

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ises. The Plaintiffs conduct and not his intentions determine whether there was a violation of the covenant of quiet enjoyment. Other than her testimony regarding noise, the Defendant failed to present any evidence, testimonial or otherwise, to support a claim for interference with quiet enjoyment. Judgment will enter for the Plaintiff on this claim.

Finally, the Defendant presented no evidence, testimonial or otherwise, to support her claim for violation of the statute regarding last months rent and judgment will enter for the Plaintiff on this claim

CORRECTED ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial, in light of the governing law, it is ORDERED that

1.Judgment enter for the Defendant for possession.

2.Judgement enter for the Defendant on her claim of retaliation and for damages in the amount of $2,400.00.

3.Judgment enter for the Defendant on her claim of breach of warranty of habitability in the amount of $1,680.57. The Defendant has already withheld $1,050.00 from her rent for the months of April, May and June and therefore the judgment on this count is reduced by that amount.

4.Judgment will enter for the Plaintiff on the Defendant’s claims of interference with quiet enjoyment and violation of the statute regarding the last months’ rent.

5.The total monetary award to the Defendant is $3,030.57.

6.Judgment enter nunc pro tunc to December 7, 2012.

 

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SO ORDERED.

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

January 17, 2013

 
Docket No.:SUMMARY PROCESS NO. 13H84SP000316

Parties:DWIGHT MILLER, Plaintiff v JANICE ELLISON, Defendant

Judge:/s/ MARYLOU MUIRHEAD

Date:February 13, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This matter was before the court for trial on January 31, 2013. The Plaintiff seeks possession of the first room on the left in Unit 2 at 18 Hartwell Street in the Dorchester neighborhood of Boston, (the “Premises”) based upon the Defendant’s failure to pay rent. The Defendant’s Motion to File Answer and Discovery as if timely filed was allowed, in part, on the day of trial. The court allowed the answer to be filed, but did not allow discovery to be served and struck the Defendant’s demand for a jury trial. The Plaintiff was given the opportunity to postpone the trial, but he chose to go forward that day.

The Defendant also filed a document entitled “Motion For TRO in 13-SP-316 [sic]” on January 28, 2013.

Based upon the all the credible testimony, the other credible evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Defendant has occupied the Premises as a tenant at will since September 2012. The

 

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agreed upon rent is $100.00 a week. The parties disagree on which day the rent is due; the Plaintiff testified that rent is due on Friday and the Defendant contends that it is due on Sunday. The Plaintiff testified that the Defendant last paid rent in early November 2012. The Defendant testifled that she last paid rent on November 26, 2012. The Defendant did not have any support for

her testimony. However, based on the date of the notice to quit (Exhibit “2”) and the amount of rent alleged to be due thereunder, the court finds that the Defendant last paid rent on or about November 9, 2012 and rent is due on Friday. The court further finds that the Defendant owes rent for the weeks of November 16, 23, 30, December 7, 14, 21, 28, 2012 and January 4, 11, 18 and 25, 2013 and, as of the date of the trial, owes $1,100.00 in past due rent.

The Defendant admits receipt of a notice to quit for non-payment of rent (Exhibit “2”) and does not challenge the sufficiency thereof. The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $1,100.00, subject to the Defendant’s defenses and counterclaims.

The Defendant’s answer alleges retaliation, discrimination on the basis of her sexual orientation, breach of warranty of habitability and interference with quiet enjoyment based on conditions.

The Defendant testified that the reason she has not paid rent is because her money was stolen and, because she is not working, she has not been able to make up for the lost funds. The court credits this testimony, but it does not constitute a legal defense to the Plaintiff’s claim.

The Defendant informed the court that her claim of retaliation is based on her refusal to give the Plaintiff a copy of the three part form the City of Boston Inspectional Services Department gave to her on November 19, 2012. This is not an activity protected by the retaliation

 

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statute and the Defendant’s retaliation claim must fail.

The Defendant failed to present any evidence, testimonial or otherwise, that she was a member of a protected class based on her sexual orientation and her claim for discrimination must fail.

In order to defend against the Plaintiffs claim for possession because of condition based defenses, the Defendant must prove that the Plaintiff knew of the conditions at the Premises before she became delinquent in her rent. The parties provided the court with two abatement orders from the City of Boston Inspectional Services Department, one dated November 19, 2012 and a second dated January 23, 2013. (Exhibits “1” and “4” respectively). The abatement order dated November 19, 2012 was not delivered to the Plaintiff until December 12, 2012, but even if it had been delivered sooner than that, the Defendant was already behind in her rent. The Defendant could not substantiate her testimony regarding meetings with the Plaintiff regarding conditions at the Premises. The Defendant cannot raise condition based defenses in this action. The court will transfer the Defendant’s claim for breach of warranty of habitability and interference with quiet enjoyment to the Small Claim docket.

Finally, the Defendant offered no evidence, testimonial or otherwise, to support her application for a temporary restraining order.

The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $1,100.00 and the Defendant has failed to advance a legal defense.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

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1.Judgment enter for the Plaintiff for possession and damages in the amount of $1,100.00.

2.Judgment enter for the Plaintiff on the Defendant’s claims of retaliation and discrimination. The Defendant’s claims of breach of warranty of habitability and interference with quiet enjoyment are transferred to the Small Claim docket.

3.Execution to issue in the usual course.

SO ORDERED.

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

February 13, 2013

 

 
Docket No.:SUMMARY PROCESS NO. 12H84SP004998

Parties:MAUREEN E. KELLY, Plaintiff v TASHONA SIMMONS and ISHANA STRAZERRO, Defendants

Judge:/s/ MARYLOU MUIRHEAD

Date:January 4, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This matter was before the court for trial on December 27, 2012. The Plaintiff seeks possession of Unit 3 at 114 Saxton Street in the Dorchester neighborhood of Boston (the “Premises”) and damages based on the Defendants’ failure to pay rent. Tashona Simmons failed to appear and was defaulted. Ms. Strazerro did appear and filed a motion to allow the late filing of an answer, which was allowed. The Plaintiff declined a continuance and chose to proceed to trial. The answer filed by Ms. Strazerro alleges retaliation, violation of the security deposit statute, interference with quiet enjoyment and violation of G.L. c. 93A.

Based on the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Defendants occupy the Premises pursuant to the terms of a written tenancy at will agreement. (Exhibit “1”). The agreed upon rent is $1,400.00 a month and due on the fifteenth of the month.

Ms. Strazerro admits that she has failed to pay rent in the amount of $6,300.00, through

 

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the date of the trial. She also acknowledges receipt of a notice to quit for non-payment of rent (Exhibit “2”) and does not challenge the sufficiency thereof.

Ms. Strazerro testified that the reason she has not paid rent is because her partner, whose responsibility it was to pay the rent, has been laid off. The court credits this testimony, but it is not a defense to the Plaintiff’s claims.

Ms. Strazerro testified that there is a problem with the heat in the bathroom and one of the bedrooms, but presented no evidence that the temperature in those rooms did not meet the requirements of the state sanitary code. The court finds that Ms. Strazerro did not meet her burden of proof with respect to the claim of interference with quiet enjoyment. Ms. Strazerro presented no evidence, testimonial or otherwise, to support her other claims. Judgment will enter for the Plaintiff on Ms. Strazerro’s counterclaims.

The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $6,300.00 and Ms. Strazerro has not established a legal defense.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial, in light of the governing law, it is ORDERED that

1.Judgment enter for the Plaintiff for possession and damages in the amount of $6,300.00.

2.Judgment enter for the Plaintiff with respect to Ms. Strazerro’s counterclaims.

3.Execution to issue in the usual course.

SO ORDERED.

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

January 4, 2013

 

 
Docket No.:NO. 12H84SP002172

Parties:FANNIE MAE a/k/a FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff v LAUREL KIRTZ, Defendant

Judge:/s/ MARYLOU MUIRHEAD

Date:March 21, 2013

BOSTON DIVISION

ORDER

 

This matter was before the court on February 14 and 28 with respect to the Plaintiffs Motion for Summary Judgment. The Plaintiff is seeking possession of Unit 2 at 92 Moreland Street in the Roxbury neighborhood of Boston (the “Premises”) `because [the Defendant] continues to hold over and occupy said premises following a public foreclosure auction and beyond the time provided in the Notice to Quit and vacate [sic].” The Defendant filed an answer asserting that no valid public foreclosure auction was held, retaliation for her filing litigation in the Superior Court, that the Plaintiff has failed to establish standing as the property owner and that the Plaintiff failed to notify May Evelyn Diggs as required by G.L. c. 239, sec. 8A.

The Plaintiff seeks summary judgment with respect to its case in chief. The Defendant opposes the motion on the basis that the Plaintiff failed to give notice of the foreclosure to May Evelyn Diggs. After hearing, and for the reasons set forth herein, the Plaintiffs Motion for Summary Judgment is ALLOWED.

 

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Preliminary Matters

 

As a preliminary matter, the court dismisses the Defendant’s defense of retaliation and her counterclaim for monetary damages pursuant to G.L. c. 239, sec. 8A. A claim for retaliation under c. 186, sec. 18 can be asserted only by a tenant of residential premises and claims pursuant to G.L. c. 239, sec. 8A can only be brought in an action to recover possession of premises rented or leased for dwelling purposes. The Defendant was never the Plaintiffs tenant and never rented or leased the Premises. Accordingly, these claims must be dismissed. Deutsche Bank National Trust Company v Gabriel, 81 Mass.App.Ct. 564 (2012). Accordingly, the Defendant’s defense of retaliation is stricken and her counterclaim is DISMISSED.

 

Standard for Summary Judgment

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), Cassesso v Commissioner of Corrections, 390 Mass. 419, 422 (1983), Community National Bank v Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue and its entitlement to judgment as a matter of law. Pederson v Time, Inc., 404 Mass. 14, 16 – 17 (1989). In viewing the record before it, the court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v Farrakhan, 436 Mass. 94, 96 (2002).

In weighing the merits of a summary judgment motion, the court must address two questions: whether the factual disputes are genuine, and whether a fact genuinely in dispute is material. Town of Norwood v Adams-Russell Co., Inc., 401 Mass. 677, 683 (1988) citing Anderson v Liberty Lobby, Inc., 477 U.S. 242,247-248 (1986). The substantive law will identify which facts

 

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are material and such facts are those which might affect the outcome of the suit under the governing law and preclude the entry of summary judgment. Anderson v Liberty Lobby, Inc., 477 U.S. at 248, citing Carey v New England Organ Bank, 446 Mass. 270, 278 (2006), Molly A. v Commissioner of the Department of Mental Retardation, 69 Mass.App.Ct. 267, 268 n. 5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the [opposing] party.” Anderson v Liberty Lobby, Inc., 477 U.S. at 248.

The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v Eissner, 405 Mass. 207, 209 (1976). To defeat summary judgment the opposing party must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Kourouvacilis v General Motors Corp., 410 Mass. 706, 714 (1991). “Conclusory statements, general denials and factual allegations not based on personal knowledge [are] insufficient.” Cullen Enterprises, Inc. v Massachusetts Property Insurance Underwriting Association, 399 Mass. 886, 890 (1987) quoting Madsen v Erwin, 395 Mass. 715, 721 (1985).

 

Undisputed Facts

 

The Defendant purchased her home located at 92 Moreland Street Boston, Massachusetts (the “Property”) from Andrea Hagins and May Evelyn Diggs. The deed conveying the property to the Defendant was signed by Andrea Hagins and Andrea Hagins as power of attorney for May Evelyn Diggs. The Defendant obtained a loan from Ohio Savings Bank and secured the loan by the mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”). Wells Fargo be-

 

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came the servicer of the loan in July 2007. Thereafter the Defendant became delinquent in her mortgage payments.

On October 22, 2010, MERS assigned the mortgage to the Property to Wells Fargo. In November 2012, Wells Fargo filed a complaint under the Servicemembers Civil Relief Act in the Land Court. On April 12, 2011, Wells Fargo sent the Defendant notice of the foreclosure sale to take place on May 12, 2011 and informed the Defendant of her right to rein-state the mortgage. The notice was sent certified and regular mail. The notice sent certified mail was returned as unclaimed. The notice sent regular mail was never returned to Wells Fargo.

Notice of the foreclosure was also sent to Old Republic National Title Insurance Company. No notice was sent to Andrea Hagins or May Evelyn Diggs.

The foreclosure was postponed four times and Wells Fargo notified the Defendant of each postponement. Wells Fargo was the high bidder at the sale on November 14, 2011 and assigned its bid to the Plaintiff. The foreclosure deed was recorded at the Suffolk Registry of Deeds on February 28, 2012, accompanied by the requisite affidavit.

In March 2012, the Defendant commenced an action in the Suffolk Superior Court (SU CV2012-001172) against the Plaintiff and Wells Fargo. Although the Plaintiff is identified as a defendant in that action, none of the twelve counts thereat are asserted against the Federal National Mortgage Association. In April 2012, Wells Fargo removed the case to the United States District Court for the District of Massachusetts, whereupon it filed a motion to dismiss. (See Kirtz v Wells Fargo 12-CV-10690-DJC).

A notice to vacate the Premises dated May 18, 2012 was left at the Defendant’s last and usual place of abode and mailed to that address by a constable on May 22, 2012.

 

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By order dated November 29, 2012, the United States District Court (Casper, J.) allowed Wells Fargo’s motion to dismiss in 12-CV-10690 and dismissed all but the counts alleging negligent misrepresentation and estoppel or detrimental reliance. Those claims remain pending in the United States District Court.

 

Discussion

The only dispute presented to this court is whether May Evelyn Diggs was entitled to notice of the foreclosure pursuant to G.L. c. 244, sec. 14, which provides in relevant part that

 

The mortgagee … , may, upon breach of condition and without action, do all the acts authorized or required by the power [of sale]; but no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been.. . sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, .. .

 

The February 17, 2012 affidavit of sale meets the requirements of G. L. c. 244, sec. 15 and constitutes evidence that the power of sale was duly executed and constitutes prima facie evidence of the Plaintiffs case in chief, including providing notice to the holder(s) of the equity of redemption thirty days prior to the sale. See Federal National Mortgage Association v Hendricks, 363 Mass. 635,641 – 642 (2012).

There is no dispute that the Defendant received notice of the termination of her right to continued occupancy of the Premises and there is no challenge to the sufficiency of the notice. the burden shifts to the opposing party to demonstrate, through the use of affidacits or by the depositions, answers to interrogatories, and admissions on file or some other evidence which would be admissible at trial, specific facts showing that there is a genuine issue for trial. If a defendant fails to show the existence of a genuine issue of material fact in response to a motion for summary judgment by contesting factually a prima facie case of compliance with G. L. c. 244,

 

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sec. 14, such failure generally should result in judgment for the plaintiff, particularly where the plaintiff has established the other elements of its case in chief. Federal National Mortgage Association v Hendricks, 363 Mass. at 642 (citations omitted).

The Defendant presents no admissible evidence that May Evelyn Diggs was a holder of the equity of redemption relative to the mortgage at issue, at any time, let alone thirty days prior to the sale. She relies solely on the existence of a confirmatory deed which states that there was a question as to the power of attorney under which the original deed was executed. She presents no legal support for her contention that the need for a confirmatory deed, which confirms the original deed and does not void the prior deed, or invests Ms. Diggs with the equity of redemption relative to the mortgage at issue; nor can she. As a matter of law Ms. Diggs was not the owner of record of the equity of redemption with respect to the subject mortgage.

In Massachusetts, a so-called “title theory” state, when a mortgage to real property is given, “[t]he mortgage splits the title in two parts: the legal title, which becomes the mortgagee’s, and the equitable title, which the mortgagor retains.” Maglione v BancBoston Mortgage Corp., 29 Mass.App.Ct. 88, 90 (1990). The mortgagee’s legal title is subject to the mortgagor’s equity of redemption. See Atlantic Savings Bank v Metropolitan Bank & Trust Co., 9 Mass.App.Ct. 286, 288 (1980). See also United States v Gargill, 218 F.2d 556, 560 (1st Cir. 1955) (noting that under Massachusetts law, a landowner granting a mortgage “does not make an absolute and unequivocal conveyance of his property but retains an equity of redemption”). Therefore, it is the mortgagor who is the owner of the equity of redemption. There is no admissible evidence to show that Ms. Diggs is the mortgagor of the Premises. In fact, the admissible evidence is to the contrary, the Defendant is the mortgagor of the property and the only owner of the equity of

 

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redemption of record.

The Defendant has failed to defeat the Plaintiffs prima facie case and the Plaintiffs Motion for Summary Judgment is ALLOWED.

 

ORDER

 

For all these reasons, the Plaintiffs Motion for Summary Judgment is ALLOWED as to its case in chief and the Defendant’s counterclaim is DISMISSED.

 

SO ORDERED.

 

/s/ MARYLOU MUIRHEAD

ASSOCIATE JUSTICE

March 21, 2013

 

 

 
Docket No.:SUMMARY PROCESS No. 12H84SP003801

Parties:CRM PROPERTY MANAGEMENT CORP., Plaintiff LUZ GONZALEZ, ANACLETO GONZALEZ, Defendants

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:October 8, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND INTERIM ORDER

 

This matter was before the court for trial on September 27 and 30, 2013. The Plaintiff seeks possession of 32 Jewett Street, a single family home, in the Roslindale neighborhood of Boston (the “Premises”) based on the Defendants’ failure to vacate the Premises after the expiration of a notice terminating a tenancy at will and monetary damages in the amount of $13,500.00. The Defendants filed an answer stating that the Plaintiff had not properly terminated their tenancy and asserting claims of breach of warranty of habitability, interference with quiet enjoyment based on conditions at the Premises and the transfer of the obligation to pay for water, violation of G.L. c. 186, sec. 15B, retaliation and violation of G.L. c. 93A. The Defendants also demanded a jury trial, but as a result of their failure to comply with the order dated March 12, 2013 (Winik, F.J.), the demand was stricken.

Based on all the credible testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

 

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The Plaintiff is the owner of the Premises.[1] (Exhibit “2”). At all times relevant hereto, the Defendants occupied the Premises pursuant to the terms of a written tenancy at will agreement, (Exhibit “1”). The agreed upon rent is $1,500.00 a month, due on the fifteenth of the month. On July 17, 2012, the Plaintiff caused the Defendants to receive a notice terminating the tenancy at will agreement. (Exhibit “3”). Subsequent to the receipt of the notice of termination, the Defendants paid use and occupancy for the months of August and September 2012. They failed to pay use and occupancy in the amount of $18,000.00[2] for the months of October 2012 through September 2013. In March 2013, the court (Winik, F.J.) ordered the Defendants to pay $1,200.00 a month into escrow pending the trial. The Defendants made four such payments and counsel for the Plaintiff is holding $4,800.00 in escrow.

The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $18,000.00, subject to the Defendants’ defenses and counterclaims.

The Defendants have asserted claims of breach of warranty of habitability, interference with quiet enjoyment based on conditions at the Premises arising out of an obligation to pay for water, violation of G.L. C. 186, sec. 158, retaliation and violation of G.L. c. 93A. At the conclusion of the Defendants’ case, the Plaintiff moved for a directed verdict on the Defendants’ claim for violation of G.L. c. 186, sec. 15B. A directed verdict is an order from the court to a jury to return a particular verdict. (Mass.R.Civ.P. 50). This is not a jury case. The motion is more appropriately advanced as a motion to dismiss or for a required finding. Regardless, the Defen-

 

 

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[1]The Defendants owned the Premises from July 14, 1995 through December 20, 2006, when they sold the Premises to Carmen S. Calderon-Rivers. (Exhibit “7”). Thereafter HSBC Bank foreclosed on its mortgage and acquired the Premises in March 2013 (See 10H84SP003038). HSBC owned the Premises until it was transferred to Lolastar LLC in February 2012. The Plaintiff manages the Premises for Lolastar LLC. (Exhibit “2”).

 

[2]The arrearage is calculated as follows. $1,500.00/month x 12 months (October 15, November 15, December 15, 2012, January 15, February 15, March 15, April 15, May 15, June 15, July 15, August 15 and September 15, 2013) = $18,000.00. $18,000.00.

 

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dants agree that there was no evidence, testimonial or otherwise to support their claim of Violation of G.L. c. 186, sec. 15B and therefore, judgment will enter for the Plaintiff on this claim.

 

Breach of Warranty of Habitability

 

To defend against the Plaintiff’s claim for possession and recover monetary damages from the Plaintiff based upon a claim of breach of warranty of habitability, the Defendants must prove that there was a material breach of the implied warranty of habitability. Material means something of importance. The existence of a material breach of the implied warranty of habitability is as question of fact to be determined in the circumstances of each case. Factors to be considered in making a determination as to whether a breach was material include the seriousness of the claimed defect and its effect on the habitability of the premises, the length of time the defect persists, whether or when the Plaintiff or its agent received notice of the defect, the possibility that the residence could be made habitable in a reasonable time and whether the breach resulted from abnormal conduct or use by the Defendants and whether the Defendants interfered with the Plaintiff’s attempts to make repairs and, if so, when. The Defendants must also establish that the Plaintiff was aware of the conditions before they were in arrears with their rent.

Mr. Gonzalez testified that there were problems with the heat at the Premises. She testified that there was no heat at the Premises on September 17, 2012. There was no evidence, testimonial or otherwise to establish the temperature at the Premises on this date did not comply with the State Sanitary Code. Moreover, the City of Boston Inspectional Services Department (“ISD”) inspected the Premises on September 17, 2012 and did not cite the Plaintiff for lack of heat. (Exhibits “9” and “10”).

Ms. Gonzalez further testified that there was no heat on November 9, 2012 and it was not

 

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restored until November 15. There is no evidence testimonial or otherwise to establish that the temperature at the Premises on any of these dates did not comply with the temperature requirements of the State Sanitary Code. There is also no evidence that the Defendants or anyone on their behalf contacted the Plaintiff or ISD in November 2012 to report a problem with the heat.

Ms. Gonzalez also testified that there is no heat in the first floor bedroom and no heat in the kitchen and there has been no heat during this heating season. There is no evidence testimonial or otherwise to establish the temperature at the Premises on any date did not comply with the State Sanitary Code. There is also no evidence that the Defendants or anyone on their behalf contacted the Plaintiff or ISD between September 2012 and the date of trial with respect to the heat at the Premises.

The Defendants have not met their burden of proof with respect to the lack of heat cannot prevail on their claim for breach of warranty of habitability based on lack of heat at the Premises.

Ms. Gonzalez and Mr. Mascoop testified to the presence of rodents at the Premises and this is supported by an abatement order by ISD. (Exhibit “10”). The Plaintiff’s responsibility for rodent infestation in a single family home is limited to its obligation to “maintain any screen, fence or other structural element necessary to keep rodents and skunks from entering the dwelling.” The Defendants are responsible for extermination. (105 CMR 410.550). On September 19, 2012, ISD delivered an abatement order to the Plaintiff requiring that the bulkhead door and all possible points or entry for rodents be sealed. (Exhibit “10). Ms. Gonzalez testified that there were no rodents at the Premises before 2012, but did not testify as to when she first observed the rodents. There was no evidence testimonial or otherwise to that the Plaintiff was aware of the conditions cited by ISD before September 19, 2012. The conditions were abated on or before

 

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November 6, 2013. (Exhibit “13”). The court finds that the condition of the bulkhead door and other potential points of entry for rodents reduced the fair market value of the Premises (which the court finds to be $1,500.00 a month) by twenty percent and the Plaintiff was aware of the matter for forty-seven days before it was corrected. As a result, the Defendants are entitled to a rent credit of 463.42.[3]

Also on September 19, 2012, the Plaintiff was made aware of other conditions at the Premises which also violated the State Sanitary Code (Exhibits “9” and “10”). There were three emergency conditions (Exhibit “9”) which reduced the value of the Premises by fifteen percent and the Plaintiff was aware of the matters for five days before they was corrected. (Exhibit “12”). The Defendants are entitled to a rent credit of $37.00 as a result of these conditions.[4] The Plaintiff was aware of other conditions (Numbered 1, 3, 4, 5, 6, 7, 8 and 9) forty-seven days before they were corrected (Exhibit “13”). All of the other conditions, taken together, reduced the value of the Premises by fifteen percent during this period. As a result, the Defendants are entitled to a rent credit of $347.80.[5]

Mr. Mascoop testified that he inspected the Premises in 2011 and again in June and September 2013. To the extent that Mr. Mascoop observed any violations of the state sanitary code or any other conditions that may have reduced the value of the Premises in 2011, he did not present any testimony that the conditions existed at the time the Plaintiff acquired the Premises. Moreover, to the extent that the conditions did exist at the time the Plaintiff took title or occurred thereafter, the conditions cited by ISD were corrected to the satisfaction of the entity charged

 

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[3]$1500.00/month x 12 months = $18,000.00/365 days = $49.31/day. .20 x $49.31 = $9.86. $9.86 x 47 = $463.42.

 

[4]$1500.00/month x 12 months = $18,000.00/365 days = $49.31/day. .15 x $49.31 = $7.40. $4.93 x 5 = $37.00.

 

[5]$1500.00/month x 12 months = $18,000.00/365 days = $49.31/day. .15 x$49.31 = $7.40. $7.40 x 47 = $347.80.

 

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with enforcing the State Sanitary Code as of November 6, 2012. The lack of violations of the State Sanitary Code at the Premises was reinforced as of April 30, 2013. (Exhibit “5”).

By the time Mr. Mascoop inspected the Premises in June of 2013, the Defendants were behind in their rent and had been in arrears since October 2012. There was no testimony that the Plaintiff was aware of the conditions he observed in June 2013 before the Defendants were behind in their rent (October 2012), nor could there be as the evidence before the court is that the Premises were in compliance with the State Sanitary Code as of November 6, 2012 and April 30, 2013. (Exhibits “12” and “13”). The conditions observed by Mr. Mascoop cannot for the basis for a defense or counterclaim in the instant action. The same is true for the conditions that form the basis for the ISD report dated August 13, 2013. (Exhibit “11”).

At the conclusion of the Defendants’ case, the Plaintiff moved for a directed verdict on the Defendants’ claim for breach of warranty of habitability. To the extent that the motion is intended as a motion to dismiss or for a required finding, it is DENIED for the reasons set forth above. Judgment will enter for the Defendants on their claim of breach of warranty of habitability in the amount of $848.22.

 

Interference with Quiet Enjoyment

 

The Defendants’ claim of interference with quiet enjoyment is based on the conditions at the Premises arising out of an obligation to pay for water. The Plaintiff is liable for interference with quiet enjoyment if the he caused or permitted acts which resulted in substantial disturbance or injury to the Defendants in their peaceful enjoyment of the premises. The Defendants must prove that the Plaintiff’s conduct was at least reckless or negligent. This means that the Defendants must prove that the Plaintiff failed to act reasonably under the circumstances concerning a

 

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problem known to the Plaintiff and that the natural and probable consequences of such failure caused the interference with the Defendants’ quiet enjoyment of the Premises. The Plaintiff’s conduct and not its intentions determine whether there was a violation of the covenant of quiet enjoyment.

To the extent that the Defendants’ claim for breach of the covenant of quiet enjoyment arises out of conditions at the Premises, the conditions cannot form the basis for the claim until the Plaintiff had knowledge thereof. With respect to the conditions identified by ISD (Exhibits “9” and “10”), the court cannot find that the Plaintiff was negligent with respect to the repair thereof. The emergency violations (Exhibit “9”) were repaired when the inspector returned to the Premises. (Exhibit “12”). The Plaintiff was working on resolving the other violations when the inspector returned. (Exhibit “13”). There was no evidence, testimonial or otherwise, that the length of time it took the Plaintiff to make the repairs was the result of any negligence on its part.

To the ex-tent that the Defendants claim that the Plaintiff interfered with their quiet enjoyment be requiring them to pay for their own water, Ms. Gonzalez testified that she was not billed for water and sewer use from 2007 through 2011, but began receiving bills in 2012. She presented no evidence to establish when in 2012 she began to receive the bills or what entity sent the bills to her. While Ms. Gonzalez testified that she received a bill for the water services two weeks ago, she did not produce a copy of that bill or any previous bill on either of the days of trial and she did not know how much she paid. Accepting without finding that the Plaintiff must pay for the water and sewer service at the Premises, there was no credible evidence that water bills were paid. The court finds that the Defendants failed to meet their burden of proof with respect to their claim of interference with quiet enjoyment.

 

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Retaliation

Under the retaliation statute, a landlord may not threaten to or take reprisal against a tenant for certain enumerated acts, commonly referred to as protected activities.[6] The only protected activity about which there was any evidence is the Defendants’ communication with the City of Boston Inspectional Services Department in September 2012 and August 2013 (“ISD”).

The notice of termination was received by the Defendants on July 16, 2012, before they contacted ISD. It cannot form the basis for a presumption of retaliation. The Defendants may still assert a claim of retaliation, but they must affirmatively prove that the Plaintiff retaliated against them for engaging in a protected activity. There was no evidence of retaliation at trial; the Defendants relied on the presumption.

At the conclusion of the Defendants’ case, the Plaintiff moved for a directed verdict on the Defendants’ claim for retaliation. To the extent that the motion is intended as a motion to dismiss or for a required finding, it is ALLOWED. Judgment will enter for the Plaintiff on this claim.

 

Violation of G.L. c. 93A

 

There is no dispute that the Plaintiff is involved in trade or commerce with the Defendants. The court has found that there were conditions at the Premises that constitute breaches of the warranty of habitability. Such conditions violate the Attorney General’s Regulations relative

 

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[6]The protected action are commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises or exercising the tenant’s rights to prevent termination of gas or electric service or reporting to the City of Boston Inspectional Services Department (“ISD”) a violation or a suspected violation of any health or building code or of any other municipal bylaw or ordinance, or state or federal law or regulation which has as its objective the regulation of residential premises; or reporting or for complaining of such violation or suspected violation in writing to the landlord or to the agent of the landlord or for organizing or joining a tenants’ union or similar organization or for making or expressing an intention to make, a payment of rent to an organization of unit owners at a condominium pursuant to M.G.L. c. 183A, sec. 6(c).

 

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to consumer protection and create a per se violation of G.L. c. 93A.

At the conclusion of the Defendants’ case, the Plaintiff moved for a directed verdict on the Defendants’ claim for violation of G.L. c. 93A. To the extent that the motion is intended as a motion to dismiss or for a required finding, it is DENIED for the reasons set forth herein. Judgment will enter for the Defendants on this claim, but the court declines to award double or triple damages. The Defendants may recover reasonable attorney’s fees with respect to the claim for breach of warranty of habitability.

 

INTERIM ORDER

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiff for monetary damages in the amount of $18,000.00.

 

2.Judgment enter for the Plaintiff on the Defendants’ claims of violation of G.L. c. 186, sec. 15B, interference with quiet enjoyment and retaliation.

 

3.Judgment enter for the Defendants on their claim for breach of warranty of habitability in the amount of $848.22. This results in a net judgment of $17,151.98 in favor of the Plaintiff

 

4.Judgment enter for the Defendants on their claim of violation of G.L. c. 93A. The court declines to double or treble damages, but will award the Defendants’ reasonable attorney’s fees with respect to their claim of breach of warranty of habitability. Within ten days of the date hereof, counsel for the Defendants is to file a motion and an affidavit with respect to attorney’s fees incurred in connection with this claim.

 

5.Plaintiff’s counsel may release the $4,800.00 currently held in escrow to be applied to the net judgment of $12,351.78. This reduces the amount due from the Defendants to $12,351.78.

 

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6.Pursuant to the fifth paragraph of M.G.L. c. 239, sec. 8A, if within ten days of the date of the entry of final judgment, the Defendants pay $12,351.78[7] to counsel for the Plaintiff, judgment shall enter for the Defendants for possession. Payment shall be by money order or certified check, payable to Plaintiffs counsel. Payment may be released to the Plaintiff upon receipt. If the payment is not made, judgment shall automatically enter in favor of the Plaintiff for possession on the next business day and the execution shall issue in the usual course.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

October 8, 2013

 

cc:Robert D. Russo, Esquire

William Sprouse, Esquire

 

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[7]$18,000.00 – 848.22 = $17,151.78 – $4,800.00 = $12,351.78.

 

 

 

 

Docket No.:SUMMARY PROCESS No. 13H84SP003050

Parties:DONALD BLEECH, Plaintiff v STEPHANIE THOMPSON, Defendant

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:August 23, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on August 15, 2013. The Plaintiff seeks possession of unit 3 at 19 Marcy Road in the Mattapan neighborhood of Boston (the “Premises”) based on the Defendant’s failure to pay rent.[1] The Defendant filed an answer denying that she owed rent and alleging that she did not reside at the Premises because of carbon monoxide. She has asserted claims of failure to comply with the law regarding public and subsidized housing, retaliation, breach of warranty of habitability, interference with quiet enjoyment, violation of G.L. c. 93A, violation of the federal Protecting Tenants at Foreclosure Ace of 2009.

Based on the all the credible testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Defendant occupies the Premises pursuant to the terms of a written lease dated December 22, 2012. (Exhibit “1”). The contract rent is $1,600.00 a month. The Defendant’s tenancy is subsidized through the Section 8 Housing Choice Voucher Program, administered by the

 

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[1]The summary process summons and complaint identifies additional reasons for the commencement of this action, but the notice of termination relied on by the Plaintiff (Exhibit “2”) limits his claim to non-payment of rent.

 

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Dedham Housing Authority. From the commencement of the lease through May 2013, the Defendant’s share of the rent was $373.00 a month. (Exhibit “1”) As of June 1, 2013 the Defendant’s share of the rent was reduced to $302.00. (Exhibit “7”). There is no dispute that the last time the Defendant paid her share of the rent was in March 2013.

The Plaintiff caused the Suffolk County Sheriff to serve the Defendant with a notice to quit for non-payment of rent dated April 29, 2013 (Exhibit “2”) on May 1, 2013. The Defendant denies receipt. The Sheriff’s return is prima facie evidence of the facts stated therein. Ryan v Sylvester, 358 Mass. 18, 20 (1970). The Defendant must do more than deny receipt to defeat this evidence. The Defendant herein did not present sufficient evidence to overcome the prima fade evidence of service of the notice to quit. The court finds that the Plaintiff has established a prima facie case for possession and monetary damages in the amount of $1,652.00, subject to the Defendant’s defenses and counterclaims.

The Defendant denies that she owes rent and alleging that she did not reside at the Premises because of carbon monoxide. She has asserted claims of failure to comply with the law regarding public and subsidized housing, retaliation, breach of warranty of habitability, interference with quiet enjoyment, violation of G.L. e. 93A, violation of the federal Protecting Tenants at Foreclosure Ace of 2009. The Defendant has the burden of proof with regard to each of these claims.

There was no evidence, testimonial or otherwise to support the Defendant’s claim that there was carbon monoxide at the Premises, that the Plaintiff failed to comply with the law regarding public and subsidized housing, that the Defendant ever engaged in activities protected by the retaliation Statute, that the Plaintiff is engaged in trade or commerce or that he violated the

 

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Protecting Tenants at Foreclosure Act of 2009. Accordingly judgment will enter for the Plaintiff on the Defendant’s claims for monetary damages arising out of exposure to carbon monoxide, failure to comply with the law regarding public and subsidized housing, retaliation, violation of G.L. c. 93A md violation of the Protecting Tenants at Foreclosure Ace of 2009. This leaves the Defendant with her claims of breach of warranty of habitability and interference with quiet enjoyment.

The Plaintiff testified that on March 24, 2013, the system that provides heat to the Premises, but not the other units at the property, failed. The Dedham Housing Authority conducted an inspection on March 27, 2013 and a re-inspection was scheduled for April 24, 2013. (Exhibit “6”). The Defendant failed to present any evidence, testimonial or otherwise, the Dedham Housing Authority or the City of Boston Inspectional Services Department determined the Premises to be uninhabitable or issued a vacate order for the Premises. In addition, the Defendant failed to present any evidence, testimonial or otherwise, the Dedham Housing Authority or the City of Boston Inspectional Services Department considered there to be any conditions at the Premises which affected the health, safety or well-being of the Defendant after the inspection on April 24, 2013.

In June the Plaintiff became aware that the heating system had to be replaced. While there is no dispute of the need to replace the system, there was no evidence, testimonial or otherwise, that the heating system was not operational or that its condition was hazardous to the Defendant. The system was not replaced until July 2013, due in part to the Defendant’s actions.

A claim for breach of warranty of habitability is based on the existence of material, defective conditions at the premises which may endanger or impair the health or safety and well-

 

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being of the persons occupying the premises.

The court finds that the failure of the heating system on March 24, 2013 constitutes a breach of the warranty of habitability, which continued for thirty-one days. The court also finds that the Defendant failed to meet her burden of proof and establish a breach of the warranty of habitability arising out of the need to replace the heating system in June 2013.

The Defendant is entitled to damages. The court further finds that for the thirty-one days from March 25 through April 24, 2013, the fair market value of the Premises was reduced by seventy-five percent. Neither party having presented any evidence of the fair market value of the Premises, the Court accepts that contract rent as the value thereof Based upon a fair market value of $1,600.00 a month, the Defendant is entitled to damages in the amount of $1,222.95 on her claim for breach of warranty of habitability.[2]

To prevail on her claim for violation of the statutory covenant of quiet enjoyment, the Defendant must prove that the Plaintiff engaged in acts or failed to act while under a duty to act, that directly or, indirectly caused a serious interference with her use and quiet enjoyment of the Premises. Violation of the statutory covenant of quiet enjoyment requires some degree of fault or foreseeability on the part of the Plaintiff. The evidence at trial was that the Plaintiff responded promptly and properly when notified of a problem with the heating system. There was no evidence that the Plaintiff engaged in acts or failed to act while under a duty to act. Judgment will enter for the Plaintiff on this claim.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the gov-

 

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[2]Damages are calculated as follows. $1,600.00/month x 12 months = $19,200.00/yr. $19,200.00 ˜ 365 days = $52.60/day. .75 x $52.60 = $39.45. $39.45 x 31 days = $1,222.95.

 

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erning law, it is ORDERED that

 

1.Judgment enter for the Plaintiff for damages in the amount of $1,652.00.

2.Judgment enter for the Plaintiff on the Defendant’s claims for monetary damages arising out of exposure to carbon monoxide, failure to comply with the law regarding public and subsidized housing, retaliation, violation of G.L. c. 93A, violation of the Protecting Tenants at Foreclosure Ace of 2009 and interference with quiet enjoyment

3.Judgment enter for the Defendant on her claim of breach of warranty of habitability in the amount of $1,222.95. This amount may be used to set off the damages awarded to the Plaintiff, which results in a net judgment in favor of the Plaintiff in the amount of $429.05.

4.Pursuant to the fifth paragraph of M.G.L. c. 239, sec. 8A, if within ten days of the date of this order, the Defendant pays $429.05 to Clerk of the Boston Housing Court, judgment shall enter for the Defendant for possession. Payment shall be by money order or certified check, payable to Clerk of the Boston Housing Court. Payment may be released to the Plaintiff upon receipt. lithe payment is not made, judgment shall automatically enter in favor of the Plaintiff for possession on the next business day and the execution all issue in the usual course.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

August 23, 2013

 

cc:Donald Bleech

Stephanie Thompson

Robert L. Lewis, Clerk Magistrate

 

 
Docket No.:SUMMARY PROCESS No. 13H84SP004572

Parties:STANLEY NJOKU, Plaintiff KEITHA NICHOLAS, Defendant

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:November 12, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on November 7, 2013. The Plaintiff seeks possession of Unit 1 at 5 Aldwin Road in the Roslindale neighborhood of Boston (the “Premises”) after termination of a tenancy at will and monetary damages based on the Defendant’s failure to pay rent. The Defendant filed an answer alleging retaliation, breach of warranty of habitability and interference with quiet enjoyment

Based on all the credible testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Defendant occupies the Premises, a first floor unit, as the Plaintiff’s tenant, pursuant to an oral agreement. The Plaintiff has terminated the tenancy by notice dated August 31, 2013 (Exhibit “1”) to allow his mother-in-law to occupy the unit, as she can no longer climb stairs. The court credits this testimony. The Defendant admits receipt of the notice (Exhibit “1”) and does not challenge the sufficiency thereof.

The agreed upon rent is $1,200.00 a month, due on the first of the month. The Defendant was current in her rent through May. Rent for June was not paid until August and the Defendant

 

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has not paid any rent since that time.

The court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $6,000.00, subject to the Defendant’s counterclaims.

The Defendant asserts that the Plaintiff has commenced this action in retaliation for her having contacted the City of Boston Inspectional Services Department (“ISD”) to report suspected violations of the State Sanitary Code. Under the retaliation statute, a plaintiff may not threaten to or take reprisal against a defendant for reporting or complaining of violations of the state sanitary code or suspected violations to the plaintiff in writing. A defendant is entitled to a rebuttable presumption that the landlord retaliated against him/her if the plaintiff served the defendant with either a written notice to quit or commenced summary process within six months of his/her having reported or complained about violations of the sanitary code or suspected violations of the sanitary code in writing. A landlord may rebut the presumption by showing sufficient justification for taking the action and would have taken the action in any event, even if the Defendant had not contacted ISD. In this case, when the Plaintiff was informed that the Defendant had contacted ISD, she was three months behind in her rent. (Exhibit “3”). The court finds that the Plaintiff has defeated the presumption of retaliation. Judgment will enter for the Plaintiff on the claim of retaliation.

To prevail on her claim of breach of warranty of habitability, the Defendant must prove that the Plaintiff was aware of the breach before the Defendant was delinquent in her rent payment. The Defendant was behind in her rent in June. The notice from ISD is dated July 19, 2013 and was not delivered to the Plaintiff until August 5, 2013 (Exhibit “3”), at which time the Defendant owed three month’s rent (Exhibit “4”). Other than the conditions identified as exist-

 

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ing in the common areas, which the court finds do not rise to the level of a breach of warranty of habitability, the Plaintiff would not have known of the existence of the conditions which form the basis for the Defendant’s claim before June 2013. The Defendant cannot defend against the Plaintiff’s claim based on the conditions identified by ISD.

With respect to the Defendant’s counterclaim for breach of warranty of habitability, the court finds that the conditions reduced the value of the Premises by twenty percent and the ISD case existed for thirty days before it was closed. As a result, the Defendant is entitled to a rent credit of $236.70[1] and judgment on her counterclaim for breach of warranty of habitability. This amount may be used to off-set the amount due to the Plaintiff hereunder.

The Defendant’s claim of interference with quiet enjoyment arises out of allegations that the Plaintiff entered the Premises without the Defendant’s permission, threatened her guests and locked them out. There was no evidence, testimonial or otherwise to support this claim and judgment will enter for the Plaintiff.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiff for possession and damages in the amount of $6,000.00.

 

2.Judgment enter for the Defendant on her claim for breach of warranty of habitability in the amount of $236.70. This amount may be used to set-off the judgment in the Plaintiff’s favor, resulting in a net judgment in favor of the Plaintiff in the amount of $5,763.30.[2]

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[1]$1,200.00/ month x 12 mos. = $14,400.00/yr. ˜ 365 days = $39.45/day. .20 x $39.45 = $7.89. $7.89 x 30 days = $236.70.

 

[2]$6,000.00 – $236.70 = $5,763.30.

 

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3.Judgment shall enter for the Plaintiff on the Defendant’s claims of retaliation and interference with quiet enjoyment.

 

4.Execution to issue in the usual course.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

November 12, 2013

 

cc:Stanley Njoku

Keitha Nicholas

 

 

 

 

Docket No.:SUMMARY PROCESS No. 12H84SP002278

Parties:SUGEILY LAKE, Plaintiff SHERIKA ALFORD, Defendant

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:May 29, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This matter was before the court for trial on May 14, 2013. The Plaintiff seeks possession of Unit 2 at 50 Annafran Street in the Roslindale neighborhood of Boston (the “Premises”) based on the Defendant’s non-payment of rent.[1] The Defendant filed an answer and counterclaims alleging retaliation, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B with respect to the last month’s rent, as well as a demand for a jury trial. The Defendant failed to appear at the pre-trial conference and the jury demand was stricken.

Prior to the trial, the court (Winik, F. J.) entered an order that the Defendant pay use and occupancy to the Plaintiff in the amount of $1,350.00 a month, commencing December 1, 2012, pending further order of the court.

Based on the testimony of the witnesses, the other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

 

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[1] The summary process summons and complaint states that the claim is also based on “disturbance” and “failure to maintain premises.” [sic] Because the notice to quit on which the claim is based is a fourteen day notice for nonpayment of rent (Exhibit “6”), the claims of disturbance and failure to maintain the premises are dismissed, without prejudice.

 

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The parties submitted written stipulations to the court (Exhibit “1”), which establish that the Defendant occupies the Premises as a tenant at will. The written tenancy at will agreement (Exhibit “2”) identifies the Plaintiff as the landlord. The agreed upon rent is $1,350.00 a month, due on the first of the month. The parties agree that the Defendant owes $10,800.00 in past due rent.[2]

The Defendant admits receipt of a notice to quit for non-payment of rent dated March 30, 2013. (Exhibit “6”). There is no evidence that the Defendant had received a notice to quit for non-payment of rent within the twelve months preceding the notice dated March 30, 2012. The parties agree that, if the Defendant had not brought the rent current before she received the notice to quit, she cured the arrearage within the ten day cure period. Because the Defendant cured the arrearage set forth in the notice to quit relied on by the Plaintiff within the statutory cure period, the Plaintiff is not entitled to possession; however, the parties agree that the Defendant owes $10,800.00 in past due rent. Accordingly, judgment will enter for the Defendant for possession and judgment will enter for the Plaintiff for monetary damages in the amount of $10,800.00, representing rent due for the months of April through November 2012, subject to the Defendant’s defenses and counterclaims of retaliation, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B with respect to the last month’s rent.

Under the retaliation statute, a plaintiff may not threaten to or take reprisal against a defendant for reporting or complaining of violations of the state sanitary code or suspected violations to the plaintiff in writing. A defendant is entitled to a rebuttable presumption that the landlord retaliated against him/her if the plaintiff served the defendant with either a written notice to quit or commenced summary process within six months of his/her having reported or complained

 

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[2] $10,800.00 represents rent for the months of April through November 20.

 

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about violations of the sanitary code or suspected violations of the sanitary code in writing. A landlord may rebut the presumption.

There is no doubt that the Defendant in this case notified the Plaintiff of suspected violations of the state sanitary code by letter dated April 12, 2012. (Exhibit “7”). There is also no doubt that the instant action was commenced within six months of the receipt of the notice to quit. The Defendant is entitled to the presumption of retaliation. The evidence at trial is that the Defendant has been chronically late with her rent for a significant period of time and often paid rent in small increments. The Defendant had cured a significant arrearage less than two weeks before complaining of the conditions identified in her letter. The court finds that the Plaintiff has rebutted the presumption of retaliation and judgment will enter for the Plaintiff on the Defendant’s claim of retaliation.

To defend against an eviction or recover monetary damages based upon a claim of breach of warranty of habitability, a defendant must prove that there was a material breach of the implied warranty of habitability. Material means something of importance. The existence of a material breach of the implied warranty of habitability is a question of fact to be determined by considering the seriousness of the claimed defect and its effect on the habitability of the premises, the length of time the defect persisted and whether or when the plaintiff knew or should have known of the defect before the defendant was in arrears with the rent. In this case, the Defendant identifies four conditions in her letter dated April 13, 2012 (Exhibit “7”): inadequate heating system, lack of an emergency exit, dangerous or hazardous material in the yard and low water pressure in the kitchen sink. There was no credible evidence that the Defendant had contacted the Plaintiff about these conditions prior to April 13, 2013. Of the conditions identified, the Plaintiff might have been aware of the first two before the Defendant owed rent and those are

 

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the only two conditions that would be considered to be material violations of the state sanitary code. The Defendant provided no substantiation to support her claim that the heating system was inadequate heating system or her claim of lack of an emergency exit. Moreover, the City of Boston Inspectional Services (“ISD”) inspected the Premises on July 5, 2012 and did not identify either condition as existing on that date. (Exhibit “7”). The conditions that were identified by ISD as a result of its inspection on July 5, 2012 do not constitute material violations of the state sanitary code. Judgment will enter for the Plaintiff on the Defendant’s claim of breach of warranty of habitability.

To establish her claim for violation of the covenant of quiet enjoyment, the Defendant must prove that the Plaintiff engaged in acts, or failed to act while under a duty to act, that directly or indirectly caused a serious interference with her use and quiet enjoyment of the premises — that is an act or omission that substantially impaired the character and value of the leased premises. Violation of the covenant of quiet enjoyment requires some degree of fault or foresee-ability on the part of the Plaintiff. The Defendant must prove that the Plaintiffs conduct was at least reckless or negligent.

Accepting without finding that all the conditions identified by the Defendant, other than those identified by ISD, existed at the Premises, the Defendant herself acknowledged that the conditions she reported to the Plaintiff were corrected and did not testify that there was any unreasonable delay. With respect to the conditions identified by ISD, there was testimony from both parties that access was not easily obtained. The court finds that the defendant has not met her burden of proof with respect to her claim of interference with quiet enjoyment and judgment will enter for the Plaintiff on this claim.

The Defendant alleges that the Plaintiff accepted a last month’s rent in the amount of

 

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$1,350.00 at the inception of the tenancy and has not paid interest on the deposit. The Plaintiff does not dispute that she accepted a last month’s rent or that she has not paid interest on the deposit, but disputes that amount. The Plaintiff believes that she accepted a deposit of $1,250.00. The only evidence of the acceptance of a last month’s rent deposit is contained in the tenancy at will agreement at paragraph 20. (Exhibit “2”). The document states that the amount of the first and last month’s rent deposit was $2,700.00. If the first month’s rent was $1,350.00 and that amount is deducted from the deposit, this leaves $1,350.00 still being held as the last month’s rent. The Plaintiff presented no records to rebut that statement in the tenancy at will agreement and the court finds that the Plaintiff is holding a last month’s rent deposit of $1,350.00.

G.L. c. 186, sec. 15B provides in relevant part at paragraph 2(a) that

 

Any lessor. . . who receives . . rent in advance for the last month of tenancy shall, beginning with the first day of tenancy, pay interest at the rate of five per cent per year or other such lesser amount of interest as has been received from the bank where the deposit has been held. Such interest shall be paid over to the tenant each year as provided in this clause; provided, however, that in the event that the tenancy is terminated before the anniversary date of such tenancy, the tenant shall receive all accrued interest within thirty days of such termination. Interest shall not accrue for the last month for which rent was paid in advance. At the end of each year of tenancy, such lessor shall give or send to the tenant from whom rent in advance was collected a statement which shall indicate the amount payable by such lessor to the tenant. The lessor shall at the same time give or send to such tenant the interest which is due or shall notify the tenant that he may deduct the interest from the next rental payment of such tenant. If, after thirty days from the end of each year of the tenancy, the tenant has not received said interest due or said notice to deduct the interest from the next rental payment, the tenant may deduct from his next rent payment the interest due.

 

There is no dispute that the Plaintiff did not provide the Defendant, or the court at trial, with any evidence that the last month’s rent is being held in a bank which pays interest at a rate less than five percent a year and there is no dispute that the Plaintiff did not give the Defendant the interest in December 2012, on the anniversary of the tenancy or allow her to deduct that amount from the rent for December 2012. Accordingly, the Defendant is entitled to damages on

 

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her claim of violation of G.L. c. 186, sec.15B in the amount of three times the amount of interest that should have been paid or credited to the Defendant in December 2012. Judgment will enter for the Defendant on this claim in the amount of $202.50.[3]

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

1.Judgment enter for the Defendant for possession.

 

2.Judgment enter for the Plaintiff for damages in the amount of $10,800.00

 

3.Judgment enter for the Plaintiff on the Defendant’s counterclaims of retaliation, breach of warranty of habitability and interference with quiet enjoyment.

 

4.Judgment enter for the Defendant on her claim of violation of G.L. c. 186, sec. 15B in the amount of $202.50.

 

5.The Defendant may set off her damages against the damages awarded to the Plaintiff This results in a net judgment to the Plaintiff in the amount of $10,597.50.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

May 29, 2013

 

cc:James W. Gilden, Esquire

Sherika Alford

 

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[3] Damages are calculated as follows. $1,350.00 x .05 = $67.50 x 3 = $202.50.

 

 

 

 
Docket No.:SUMMARY PROCESS No. 13H84SP001823

Parties:LUIS DELAROSA, Plaintiff V SAUL MEJIA, Defendant

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:June 14, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on June 6, 2013. The Plaintiff seeks possession of Room 1 in the basement unit at 27 Priesing Street in the Jamaica Plain neighborhood of Boston (the “Premises”) and monetary damages based on the Defendant’s failure to pay rent. The Defendant filed an answer denying that he owes rent and alleging retaliation, discrimination based upon race and national origin, breach of warranty of habitability, violation of the security deposit statute, interference with quiet enjoyment and violation of G.L. c. 93A.

Based on the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Defendant occupies the Premises, a single room in the basement unit, which is also occupied by the Plaintiff, as a tenant at will. The agreed upon rent is $350.00 a month and there is no dispute that the Defendant has failed to pay rent for the months of March, April and May 2013. As of the day of trial, the Defendant owes $1,050.00 in past due rent. The Defendant admits receipt of a notice to quit for non-payment of rent (Exhibit “1”) and does not challenge the

 

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sufficiency thereof. Accordingly, the court finds that the Plaintiff has established a prima facie case for possession and damages in the amount of $1,050.00, subject to the Defendant’s defenses and counterclaims.

Under the retaliation statute, a landlord may not threaten to or take reprisal against a tenant for reporting or complaining of such violation or suspected violation to the City of Boston Inspectional Services Department (“ISD”). There is no dispute that the Defendant contacted ISD regarding conditions at the Premises (Exhibit “2”); however, the contact did not take place until after the notice to quit was served and this case had begun. Neither the service of the notice to quit nor the commencement of this case constitutes retaliation and the Defendant presented no other evidence to support this claim. Judgment will enter for the Plaintiff on the claim of retaliation.

To recover monetary damages from the Plaintiff based upon a claim of breach of warranty of habitability, the Defendant must prove that there was a material breach of the implied warranty of habitability. Material means something of importance. The existence of a material breach of the implied warranty of habitability is a question of fact to be determined in the circumstances of each case. Factors considered in determining whether a breach was material include the seriousness of the claimed defect and its effect on the habitability of the premises, the length of time the defect persists, whether or when the landlord or his agent received notice of the defect, the possibility that the residence could be made habitable in a reasonable time whether the breach resulted from abnormal conduct or use by the Plaintiff and whether the Defendant interfered with the Plaintiff’s attempts to make repairs and, if so, when.

Of the four conditions identified by ISD on the report provided to the court (Exhibit “2”),

 

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the court finds that conditions 2, 4 and 5 constitute a material breach of the warranty of habitability and that the Plaintiff was aware of these conditions before the Defendant was in arrears in his rent. There is no evidence, testimonial or otherwise, to establish how long these conditions existed and, as a result, the court can only assess damages for the months of March April and May, the time the Defendant was in arrears. The court finds that the Defendant is entitled to $500.00 in damages as a result of the conditions at the Premises.

There is no evidence, testimonial or otherwise, to support the Defendant’s claims of discrimination based upon race and national origin, violation of the security deposit statute, interference with quiet enjoyment and violation of G.L. c. 93A. Judgment will enter for the Plaintiff on these claims.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiff for possession and damages in the amount of $1,050.00, subject to the Defendant’s counterclaims.

2.Judgment enter for the Plaintiff on the Defendant’s claims of retaliation discrimination based upon race and national origin, violation of the security deposit statute, interference with quiet enjoyment and violation of G.L. c. 93A.

3.Judgment enter for the Defendant on his claim of breach of warranty of habitability in the amount of $500.00.

4.The parties may set off the Plaintiff’s damages against the damages awarded to the Defendant. This results in a net judgment in favor of the Plaintiff in the

 

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amount of $550.00.

5.Pursuant to the fifth paragraph of M.G.L. c. 239, sec. 8A, if within ten days of the date of this order, the Defendant pays $550.00 to the court; judgment shall enter for the Defendant for possession. Payment shall be by money order or certified check, payable to the Clerk of the Boston Housing Court. If the payment is not made, judgment shall automatically enter in favor of the Plaintiff for possession on the next business day and the execution shall issue in the usual course.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

June 14, 2013

 

cc:Luis DeLaRosa

Saul Mejia

Robert L. Lewis, Clerk Magistrate

 

 

 

 

Docket No.:SUMMARY PROCESS NO. 12H84SP000289

Parties:KENNETH ALLEN, Plaintiff v RASHIDA MILES and TROY WILLIAMS, Defendants

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:March 13, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on February 28, 2013. The Plaintiff seeks possession of the property at 24 Nightingale Street in the Dorchester neighborhood of Boston, (the “Premises”) after termination of a tenancy at will. Troy Williams failed to appear at trial or respond to the complaint and is defaulted. Rashida Miles filed an answer alleging that her tenancy was not properly terminated and asserting claims of retaliation, discrimination on the basis of a disability, breach of warranty of habitability, interference with quiet enjoyment and violation of G.L. c. 93A.

Based on the all the credible testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Plaintiff is the owner of the Premises, which he testified is a single family home.

Ms. Miles has occupied the Premises since September 1, 2011, as a tenant at will. Ms. Miles admits receipt of a document entitled “Notice to Pay Rent or Quit.” (Exhibit “2”). The document notifies Ms. Miles to vacate the second floor of the Premises within fourteen days of receipt of the notice and states that Ms. Miles does not owe rent and that the tenancy cannot be

 

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reinstated. (Exhibit “2”).

As a matter of law, the notice is not sufficient to terminate Ms. Miles’ tenancy at will. G.L. c. 186, sec. 12 provides in relevant part that a tenancy at will may be terminated by either party by three months’ notice in writing or, if the rent … is payable at periods of less than three months, the time of such notice shall be sufficient if it is equal to the interval between the days of payment or thirty days, whichever is longer. To the extent that Ms. Miles ever paid rent at the Premises, it was payable in monthly installments. Such a tenancy can only be terminated by a notice equal to one full rental period. The notice at issue only provides fourteen days notice. Because this case involves the simple termination of a tenancy at will, the notice is not legally sufficient to terminate Ms. Miles’ tenancy. Judgment will enter for the Defendants for possession.

Ms. Miles has asserted claims of retaliation, discrimination on the basis of a disability, breach of warranty of habitability, interference with quiet enjoyment and violation of G.L. c. 93A. There was no evidence, testimonial or otherwise, to support a claim for discrimination and judgment will enter for the Plaintiff on that claim.

Under the retaliation statute, a landlord may not threaten to or take reprisal against a tenant for relief in court to obtain damages under, or enforce, any federal, state or local law, regulation, by-law or ordinance which has as its objective the regulation of residential premises; contacting the City of Boston Department of Inspectional Services (“ISD”) to report a violation or suspected violation of any health or building code, and/or reporting or complaining of such violation or suspected violation in writing to the landlord or the landlord’s agents. Service of a notice to quit for any reason other than non-payment of rent can be considered an act of reprisal and there is a presumption of retaliation if the landlord serves the tenant with a notice to quit within six

 

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months of the tenant having engaged in a protected activity outlined above. (G.L. c. 186, sec. 18). While there is no dispute that ISD issued abatement orders to the Plaintiff (Exhibits “3,” “4” and “5”), there is no evidence, testimonial or otherwise, to establish when the Plaintiff received those orders, if ever.[1] Without that evidence, Ms. Miles cannot establish the presumption of retaliation. She can still assert the claim, but must prove, with affirmative evidence, that the summary process action was commenced in retaliation for her having engaged in a protected activity. There was no affirmative evidence of reprisal, testimonial or otherwise, at trial. Judgment will enter for the Plaintiff on this claim.

To recover monetary damages from the Plaintiff based upon a claim of breach of warranty of habitability, Ms. Miles must establish that there was a material breach of the warranty of habitability. The existence of a material breach of the warranty of habitability is a question of fact to be determined in the circumstances of each case. Factors considered in making a determination as to whether a breach was material include the seriousness of the claimed defect and its effect on the habitability of the premises, the length of time the defect persists, whether or when the Plaintiff or his agent received notice of the defect, the possibility that the residence could be made habitable in a reasonable time and whether the breach resulted from abnormal conduct or use by the Defendant.

To support her claim of breach of warranty of habitually, Mr. Miles submits three abatement orders from ISD citing failure to provide electricity at the Premises based on its use as a rooming house (Exhibit “3”), failure to maintain heating facilities and to provide heat as required by the State Sanitary Code (Exhibit “5”) and a missing screen for the front door, gaps in the pe-

 

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[1] While Ms. Miles’ filing of an application for a temporary restraining order could for the basis for her retaliation claim, the instant action was filed long before Ms. Miles sought the intercession of the court.

 

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rimeter of the living room and dining rooms, holes in the floor at the radiators, toilet loose in the first floor bathroom, peeling vanity in the first floor bathroom, missing and loose balusters on the stairs to the second and third floors, toilet on the second floor is loose and missing a toilet seat, sink and tub in the second floor bathroom missing faucet knobs and cannot be used, stained caulking around the tub in the second floor bathroom, a hole under the bathroom sink, evidence of a leaking bathroom ceiling, staining on caulking behind kitchen sink, kitchen sink sprayer is missing, microwave is defective, hole in kitchen ceiling, kitchen drawer missing front, hole under the kitchen sink cabinet and the lack of an ownership posting. (Exhibit “4”). The documents submitted into evidence do not have returns of service stating when the Plaintiff received the orders and there was no evidence, testimonial or otherwise, as to how service was made. It is Ms. Miles’ burden to establish that the Plaintiff received the abatement orders and she has not met that burden

Many of the claims by Ms. Miles are predicated on the assertion that the Premises are being operated as a rooming house. While Inspector Weston testified that she believed that this was true, she had no information to support her conclusion and Ms. Miles, whose burden it is to establish this fact, offered no evidence to establish the use of the Premises as a rooming house. The court finds that Ms. Miles has not met her burden and that, for purposes hereof, the Premises constitute a single family home.

Ms. Miles testified that the oil burner is inoperable and Inspector Weston issued an abatement order for failure to maintain the heating facilities. (Exhibit “5”). However, the Plaintiff testified that the Premises are heated by gas and the account is in his name. There was no evidence, testimonial or otherwise, that the oil burner was the current source of heat at the Premises. It is

 

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Ms. Miles burden to establish that the Premises are heated by oil and the oil burner is inoperable. The court will accept that the oil burner is inoperable, but Ms. Miles has failed to present any evidence, testimonial or otherwise to defeat the Plaintiff’s allegation that the Premises are heated by gas. The court finds that Ms. Miles has not met her burden and that, for purposes hereof, the Premises are heated by gas.

A landlord is required to provide heat to at least 68 degrees F between 7 a.m. and 11 p.m. and 64 degrees F between 11:01 p.m. and 6:59 a.m. every day between September 15 and June 15. (105 CMR 410.201). There is no dispute that on the date of Inspector Weston’s inspection, the indoor temperature was 60.4 degrees F, which does not meet the sanitary code requirements regardless of the time of the inspection. Ms. Miles testified that there has been no heat since the inception of her tenancy and that there have been periods of time during which the electricity was shut off. There was no support for this testimony and Ms. Miles gave no evidence that she informed the Plaintiff of these conditions.

The court does not have any information to establish when, if ever, the Plaintiff became aware of the problem with the heat. On February 11, 2013, the court (Winik, F.J.) allowed Ms. Miles’ application for a temporary restraining order and ordered the Plaintiff to restore heat and hot water to the Premises by 4 o’clock p.m. on February 12, 2013. The order was issued ex parte and Ms. Miles never picked up the order for service. (See Miles v Allen 13H84CV000125). If the order was not picked up, it could not be served and Ms. Miles cannot establish that the Plaintiff had knowledge of the lack of heat and/or hot water at the Premises,

Ms. Miles testified that she told the Plaintiff that there was a problem with water in the kitchen “last year.” She did not put anything in writing and could not state when she spoke to the

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Plaintiff. The court finds that Ms. Miles failed to meet her burden of proof with respect to her claim of breach of warranty of habitability. Judgment will enter for the Plaintiff on this claim.

A claim of violation of the covenant of quiet enjoyment, similarly to a claim of negligence, requires some degree of fault or foreseeability on the part of the landlord. Ms. Miles must prove that the Plaintiff failed to act reasonably under the circumstances concerning a problem known to him and that the natural and probable consequences of such failure caused the interference with Ms. Miles’ quiet enjoyment of the premises. To prevail on this claim, Ms. Miles must prove that the Plaintiff was negligent with regard to the issues on which her claim is based. Because the Defendants have not established that the Plaintiff was aware of the conditions that form the basis for her breach of warranty claim she cannot establish that the Plaintiff failed to act reasonably under the circumstances concerning a problem known to him. To the extent that Ms. Miles bases her claim for interference with quiet enjoyment on the allegation that the electricity is not in the Plaintiffs name, she agrees that the bill is not in her name and presented no evidence, testimonial or otherwise, that she ever paid for electrical service.

Judgment will enter for the Plaintiff on Ms. Miles’ claim of interference with quiet enjoyment.

Finally, because Ms. Miles has not met her burden of proof with respect to her condition based counterclaims and has not alleged a separate ground for her claim violation of G.L.c. 93A, judgment will enter for the Plaintiff on this claim as well.

Ms. Miles has submitted Requests for Findings of Fact and Rulings of Law after the conclusion of the trial. Except to the extent that all or part of such requests are incorporated into the court’s written findings, same are DENIED

 

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ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Defendants for possession.

2.Judgment enter for the Plaintiff on Ms. Miles’ claims of retaliation, discrimination, breach of warranty of habitability, interference with quiet enjoyment and violation of G.L. c. 93A.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

March 13, 2013

 

cc:Kenneth Allen

Robert Burdick, Esquire

 

 

 

 

Docket No.:SUMMARY PROCESS No. 13H84SP002971

Parties:SYLVESTER R. SPENCER, TRUSTEE of the SRS REALTY TRUST d/b/a PARKVIEW MANAGEMENT, Plaintiff TANYA JONES[1], Defendant

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:October 4, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND INTERIM ORDER

 

This matter was before the court for trial on August 8, 20, 26 and September 24, 2013. The Plaintiff seeks possession of Unit 1 at 104 Hutchings[2] Street in the Dorchester neighborhood of Boston (the “Premises”) based on the Defendant’s failure to vacate the Premises after the expiration of a notice terminating her tenancy. The Defendant filed an answer stating that the Plaintiff had not properly terminated her tenancy and had failed to comply with the rules for public or subsidized housing, as well as asserting claims of retaliation, discrimination on the basis of her receipt of public or rental assistance and disability, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B, interference with quiet enjoyment based on conditions at the Premises, and violation of G.L. c. 93A.

Based on all the credible testimony and other evidence presented at trial and the reasona-

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[1]To the extent that the complaint seeks possession against persons identified as “all other persons residing” [sic] same is DISMISSED. A summary process action is personal in nature and a claim for possession cannot lie against persons identified solely as “all other persons residing.”

 

[2]This is the spelling of the name of the street on which the Premises are located. There is no street in Boston named “Hutchins” Street.

 

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ble inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Plaintiff is the owner of the property located at the corner of Park View and Hutchings Streets in Roxbury. The property has two addresses, 6 Park View and 104 Hutchings, but is assessed as one property. There are four units in the two buildings; Park View has three units and Hutchings Street is one unit on two floors.

The Defendant occupies the Premises pursuant to the terms of a written lease. (Exhibit “2”). Her tenancy is subsidized through the section 8 Housing Choice Voucher Program administered by the Metropolitan Boston Housing Partnership (“MBHP”). The lease contains a Tenancy Addendum as required by the Housing Assistance Payment (“HAP”) Contract executed by the Plaintiff and MBHP. (Exhibit “2”). In accordance with the terms of the lease, the Plaintiff is responsible to pay for heat and hot water and the Defendant is responsible to pay for electricity and cooking fuel. (Exhibit “2”). The tenancy commenced on June 13, 2003. (Exhibit “2”).

The only evidence of rent is that set forth on the lease (Exhibit “2”) and the court finds that the contract rent for the Premises, at all times relevant hereto, was $2,000.00 a month. Neither party presented evidence of a rent increase.

The lease between the parties (Exhibit “2,” paragraph 10(B)(1)) permits the landlord to terminate the tenancy for serious or repeated violation of the lease, violation of Federal, State or local law that imposes obligations on the tenant in connection with the occupancy or use of the unit and the premises, criminal activity or alcohol abuse or other good cause. (Exhibit “2,” Tenancy Addendum, paragraph 8(b)). After the initial lease term, other good cause is defined as disturbance of the neighbors, destruction of property, living or housekeeping habits that cause damage to the unit or premises, failure to accept the offer of a new lease or revision, the owners de-

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sire to use the unit for personal or family use or a purpose other than as a residential unit or a business or economic reason for termination of the tenancy, including renovation of the unit. (Exhibit “2,” Tenancy Addendum, paragraph 8(d)). The landlord is required to give the tenant at least fourteen days notice to terminate the tenancy for non-payment of rent and thirty days notice for termination for other grounds. (Exhibit “2,” paragraph 10(B)(1)). The landlord may also elect not to extend the lease at the end of a term, without stating a reason, by giving the tenant at least thirty days or one rental period notice. (Exhibit “2,” paragraph 10(B)(2)).

The Plaintiff testified that he intends to move into the first floor at the Premises and change the occupancy of the property from four to three units, combining the second floor of the Premises with unit 2 at 6 Park View. He has already converted the heating system from one to three systems and sub-metered the building. The Defendant did not offer any evidence to dispute that Plaintiff’s testimony and the court credits same.

The Defendant admits receipt of a notice of termination of her tenancy dated May 23, 2013 (Exhibit “1”) and challenges the sufficiency thereof. It is unclear whether the Defendant contends that the notice (Exhibit “I”) is insufficient because it states two grounds for the termination of the tenancy or because the Plaintiff does not provide specific detail as to the reasons for termination.

The notice (Exhibit “I”) states in relevant part that the Defendant’s tenancy can be terminated “for other good cause” or for “serious or repeated violation of the lease, violation of Federal, State or local law.” The notice further states that the reason for termination of the Defendant’s lease is the Plaintiff’s “desire[] to use the unit for personal or family use or for a purpose other than as a residential unit and/or a business and/or economic reason.” (Exhibit “1”). The

 

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lease does not require that a notice of termination include specific language. (Exhibit “2”). The lease between the parties does not limit that Plaintiff to only one reason for termination. The only requirement set forth in the lease with respect to termination is that the Plaintiff notifies the Defendant of the grounds for which possession is sought. (Exhibit “2,” HAP contract paragraph 8(0). The court finds that the Plaintiff has caused the Defendant to receive a legally sufficient notice to terminate her tenancy and established a prima facie case for possession, subject to the Defendant’s defenses and counterclaims.

The Defendant has asserted dims of retaliation, discrimination on the basis of her receipt of public or rental assistance and disability, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B, interference with quiet enjoyment based on conditions at the Premises, and violation of G.L. c. 93A.

There was no evidence, testimonial or otherwise to support the Defendant’s claim for discrimination on the basis of her receipt of public assistance or having a disability and judgment will enter for the Plaintiff on this claim.

 

Retaliation

 

Under the retaliation statute, a landlord may not threaten to or take reprisal against a tenant for certain enumerated acts, commonly referred to as protected activities.[3] The only protected activity about which there was any evidence is the Defendant’s communication with the City

 

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[3]The protected action are commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises or exercising the tenant’s rights to prevent termination of gas or electric service or reporting to the City of Boston Inspectional Services Department (“ISD”) a violation or a suspected violation of any health or building code or of any other municipal bylaw or ordinance, or state or federal law or regulation which has as its objective the regulation of residential premises; or reporting or for complaining of such violation or suspected violation in writing to the landlord or to the agent of the landlord or for organizing or joining a tenants’ union or similar organization or for making or expressing an intention to make, a payment of rent to an organization of unit owners at a condominium pursuant to M. G.L. c. 183A, sec. 6(c).

 

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of Boston Inspectional Services Department (“ISD”).[4] The Defendant testified both that she never called ISD to report conditions at the Premises and that she did call ISD on one occasion, but her call was not returned. The court does not credit this testimony. Accepting without finding that contacting MBHP to request an inspection because of conditions at the Premises qualifies as a protected activity under G.L. c. 186 sec. 18, there was no evidence that the Defendant did so until after she was served with the Summary Process Summons and Complaint in this action.

Therefore, to prevail on her retaliation claim, the Defendant must prove that the Plaintiff retaliated against her. There was no evidence of retaliation and judgment will enter for the Plaintiff on this claim.

 

Breach of Warranty of Habitability

 

To defend against the Plaintiffs claim for possession and recover monetary damages from the Plaintiff based on a claim of breach of warranty, the Defendant must prove that there was a material breach of the warranty. Material means something of importance. The existence of a material breach of the warranty of habitability is a question of fact to be determined in each case. The statute of limitation with regard to the Plaintiffs claims of breach of warranty of habitability is six years. (G.L. c. 260, sec. 2). The Defendant is limited to claims arising on or after July 30, 2007.

There is conflicting evidence between the MBHP reports and the testimony of the Defendant and her children. The court credits the evidence presented by MBHP at trial. (Exhibit

 

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[4]The Defendant testified that she complained about conditions at the property to the Plaintiff through text messaging. Accepting that text messaging constitutes a complaint in writing for purposes of the retaliation statute, there was no evidence as to what conditions were identified in these text messages, when they were sent or that the Plaintiff received them. The court does not credit this testimony.

 

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“7”).

There was no evidence that anyone notified the Plaintiff of conditions at the Premises needing repair for any reason from January 1 through November 14, 2007.

By notice dated November 15, 2007, MBHP informed the Plaintiff that that the Premises had failed an annual inspection which took place on November 13, 2007. (Exhibit “7,” notice dated November 15, 2007). This is the first notice to the Plaintiff of the conditions identified therein. A tenant’s obligation to pay rent abates, in whole or in part, as soon as the landlord has knowledge or notice of the existence of material defective conditions at the premises which may endanger or impair the health or safety and well-being of the persons occupying the premises. The Plaintiff was aware of the conditions on November 15, 2007 is responsible for the repair thereof from that date. The repairs were completed on February 29, 2008. A notice dated March 3, 2008 informed the Plaintiff that the Premises had passed inspection on February 29, 2013. The court finds that the conditions identified on the November 13, 2007 MBHP inspection report reduced the fair market value of the Premises without defects (the “value”), which the court finds to be $2,000.00 a month, by fifteen percent from November 16, 2007, through February 28, 2008, a period of one hundred and five days and the Defendant is entitled to a rent credit of $1,035.30.[5]

The Premises failed inspection on August 25, 2008, July 2, 2009 and May 13, 2010 (Exhibit “7,” notices dated August 26, 2008, July 15, 2009 and May 20, 2010), but the court finds that none of the conditions identified in the MBHP inspection reports issued on those dates rise to the level of a breach of warranty of habitability.

 

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[5]Rent credit is calculated as follows. $2,000.00 a month x 12 months = $24,000.00 ˜ 365 days =$65.75/ day. .15 x $65.75 = $9.86. $9.86 x 105 = $1,035.30.

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By notice dated February 9, 2012, MBHP informed the Plaintiff that that the Premises had failed an annual inspection which took place on February 8, 2012. (Exhibit “7,” notice dated February 9, 2012). The first notice the Plaintiff had of the conditions was on February 9, 2012. He is responsible for the repair thereof from that date. The repairs were completed on April 30, 2013. The court finds that the conditions identified on the February 8, 2012 MBHP inspection report reduced the value of the Premises by fifteen percent from February 10, 2012, the date on which the Plaintiff became aware thereof, through April 30, 2012, a period of eighty-one days and the Defendant is entitled to a rent credit of $798.66[6].

By notice dated December 3, 2012, MBHP informed the Plaintiff that that the Premises had failed an annual inspection which took place on November 29, 2013. (Exhibit “9”). The Plaintiff was not aware of the conditions identified on the inspection report dated November 29, 2012 until December 4, 2012. He is responsible for the repair thereof from that date. The re-inspection was cancelled twice (Exhibit “7,” notices dated December 28, 2012 and January 29, 2013), but the Defendant did not present any evidence that the repairs were not completed on the original date — January 4, 2013. The court finds that the conditions identified on the November 29, 2012 MBHP inspection report reduced the value of the Premises by fifteen percent from November 30, 2012, the date on which the Plaintiff became aware thereof, through January 4, 2013, a period of thirty-four days and the Defendant is entitled to a rent credit of $325.24.[7]

The Defendant contacted MBHP on July 12, 2013, after receipt of the Summary Process

 

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[6]Rent credit is calculated as follows. $2,000.00 a month x 12 months = $24,000.00 365 days =$65.75/ day. .15 x $65.75 = $9.86. $9.86 x 81 = $798.66.

 

[7]Rent credit is calculated as follows. $2,000.00 a month x 12 months = $24,000.00 ˜ 365 days =$65.75/ day. .15 x $65.75 = $9.86. $9.86 x 34 = $325.24.

 

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Summons and Complaint in this matter, and requested an inspection of the Premises.[8] The inspection took place on the same date that MBHP found the Premises to be in compliance with its standards. (Exhibit “7,” letter dated July 15, 2013).

There was testimony and photographs of conditions that existed on August 6, 2013 (Exhibit “8”). Accepting without finding the testimony to be true and the photographs to be credible, the there is no evidence, testimonial or otherwise upon which the court could find that the Plaintiff was aware of those conditions at any time prior to the trial as MBHP had found the Premises to meet its standards on July 15, 2013, no entity issued a notice of any violation after July 15, 2013 and there was no evidence that the Defendant informed the Plaintiff of those conditions.

Judgment will enter for the Defendant on the claim for breach of warranty of habitability for monetary damages in the amount of $2,159.20.

Because the Defendant prevailed on this claim, she is entitled to possession of the Premises.

Violation of G.L. c. 186, sec. 15B

 

There is no dispute that the Plaintiff accepted a security deposit in the amount of $1,000.00 from the Defendant at the inception of the tenancy. The security deposit remains the propter of the tenant throughout the tenancy and the landlord cannot use the security deposit to fund repairs or unpaid rent during the tenancy. There is no dispute that the Plaintiff, at divers times during the Defendant’s tenancy, made deductions from the security deposit and the Plaintiff testified that the security deposit was depleted. Based upon these representations, the court

 

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[8]The court notes that the Defendant was sewed with a copy of the Summary Process Summons and Complaint in this action on July 2, 2013.

 

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finds that if the security deposit was ever placed in an account that complies with the mandates of G.L. c.186, sec. 15B, at some point, prior to terminating the Defendant’s tenancy, he stopped doing so. The Defendant is entitled to the return of her security deposit of $1,000.00. The Defendant is also entitled to triple damages because the Plaintiff did not hold the deposit in the type of account mandated by G.L. c. 186, sec. 15B(7).

The court further finds that the Plaintiff never paid the Defendant the interest that she was owed as a result of the security deposit being held in an interest bearing account. The Defendant is entitled to three times the amount of interest at five percent a year from June 2003 through May 2013, a period of ten years or $1,500.00.

Judgment will enter for the Defendant on this claim for $3,500.00 and reasonable attorney’s fees.

 

Interference with Quiet Enjoyment Based on Conditions at the Premises

 

The Plaintiff is liable for interference with quiet enjoyment if the he caused or permitted acts which resulted in substantial disturbance or injury to the Defendant in her peaceful enjoyment of the premises. The Defendant must prove that the Plaintiff’s conduct was at least reckless or negligent. This means that the Defendant must prove that the Plaintiff failed to act reasonably under the circumstances concerning a problem known to the Plaintiff and that the natural and probable consequences of such failure caused the interference with the Defendant’s quiet enjoyment of the Premises. The Plaintiff’s conduct and not his intentions determine whether there was a violation of the covenant of quiet enjoyment.

Based on the credible evidence presented at trial, the court cannot find that the Plaintiff’s conduct to be reckless or negligent. Judgment will enter for the Plaintiff on this claim.

 

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Violation of G.L. c. 93A

 

There is no dispute that the Plaintiff is involved in trade or commerce with the Defendant. The court has found that there were conditions at the Premises that constitute breaches of the warranty of habitability. Such conditions violate the Attorney General’s Regulations relative to consumer protection and create a per se violation of G.L. c. 93A. The court declines to award double or triple damages, but the Defendant may recover reasonable attorney’s fees with respect to the claim for breach of warranty of habitability.

 

INTERIM ORDER

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for the Plaintiff on the Defendant’s claims of discrimination retaliation and interference with quiet enjoyment.

 

2.Judgment enter for the Defendant on her claim for breach of warranty of habitability in the amount of $2,159.20.

 

3.Judgment enter for the Defendant on her claim for violation of G.L. c. 186, sec. 15B, for violation of the security deposit in the amount of $3,500.00.

 

4.Judgment enter for the Plaintiff on her claim for Violation of G.L. c. 93A arising out of the breach of warranty of habitability, but the court declines to award further damages.

 

5.Within ten days from the date hereof, counsel for the Defendant is to file an affidavit with respect to attorney’s fees incurred with respect only to the claims of violation of G.L. c. 186, sec. 15B and G.L. c. 93A, arising out of the claim for

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breach of warranty of habitability.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

October 4, 2013

 

cc:Lawrence Wind, Esquire

Francis Curren, Esquire

 

 
Docket No.:SUMMARY PROCESS No. 13H84SP002971

Parties:SYLVESTER R. SPENCER, TRUSTEE of the SRS REALTY TRUST d/b/a PARKVIEW MANAGEMENT, Plaintiff TANYA JONES[1], Defendant

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:November 19, 2013

BOSTON DIVISION

CORRECTED FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on August 8, 20, 26 and September 24, 2013. The Plaintiff seeks possession of Unit 1 at 104 Hutchings[2] Street in the Dorchester neighborhood of Boston (the “Premises”) based on the Defendant’s failure to vacate the Premises after the expiration of a notice terminating her tenancy. The Defendant filed an answer stating that the Plaintiff had not properly terminated her tenancy and had failed to comply with the rules for public or subsidized housing, as well as asserting claims of retaliation, discrimination on the basis of her receipt of public or rental assistance and disability, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B, interference with quiet enjoyment based on conditions at the Premises, and violation of G.L. c. 93A.

Based on all the credible testimony and other evidence presented at trial and the reasona-

 

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[1]To the extent that the complaint seeks possession against persons identified as “all other persons residing” [sic] same is DISMISSED. A summary process action is personal in nature and a claim for possession cannot lie against persons identified solely as “all other persons residing.”

 

[2]This is the spelling of the name of the street on which the Premises are located. There is no street in Boston named “Hutchins” Street.

 

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ble inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Plaintiff is the owner of the property located at the corner of Park View and Hutchings Streets in Roxbury. The property has two addresses, 6 Park View and 104 Hutchings, but is assessed as one property. There are four units in the two buildings; Park View has three units and Hutchings Street is one unit on two floors.

The Defendant occupies the Premises pursuant to the terms of a written lease. (Exhibit “2”). Her tenancy is subsidized through the section 8 Housing Choice Voucher Program administered by the Metropolitan Boston Housing Partnership (“MBHP”). The lease contains a Tenancy Addendum as required by the Housing Assistance Payment (“HAP”) Contract executed by the Plaintiff and MBHP. (Exhibit “2”). In accordance with the terms of the lease, the Plaintiff is responsible to pay for heat and hot water and the Defendant is responsible to pay for electricity and cooking fuel. (Exhibit “2”). The tenancy commenced on June 13, 2003. (Exhibit “2”).

The only evidence of rent is that set forth on the lease (Exhibit “2”) and the court finds that the contract rent for the Premises, at all times relevant hereto, was $2,000.00 a month. Neither party presented evidence of a rent increase.

The lease between the parties (Exhibit “2,” paragraph 10(B)(1)) permits the landlord to terminate the tenancy for serious or repeated violation of the lease, violation of Federal, State or local law that imposes obligations on the tenant in connection with the occupancy or use of the unit and the premises, criminal activity or alcohol abuse or other good cause. (Exhibit “2,” Tenancy Addendum, paragraph 8(b)). After the initial lease term, other good cause is defined as disturbance of the neighbors, destruction of property, living or housekeeping habits that cause damage to the unit or premises, failure to accept the offer of a new lease or revision, the owners de-

 

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sire to use the unit for personal or family use or a purpose other than as a residential unit or a business or economic reason for termination of the tenancy, including renovation of the unit. (Exhibit “2,” Tenancy Addendum, paragraph 8(d)). The landlord is required to give the tenant at least fourteen days notice to terminate the tenancy for non-payment of rent and thirty days notice for termination for other grounds. (Exhibit “2,” paragraph 10(B)(1)). The landlord may also elect not to extend the lease at the end of a term, without stating a reason, by giving the tenant at least thirty days or one rental period notice. (Exhibit “2,” paragraph 10(B)(2)).

The Plaintiff testified that he intends to move into the first floor at the Premises and change the occupancy of the property from four to three units, combining the second floor of the Premises with unit 2 at 6 Park View. He has already converted the heating system from one to three systems and sub-metered the building. The Defendant did not offer any evidence to dispute that Plaintiff’s testimony and the court credits same.

The Defendant admits receipt of a notice of termination of her tenancy dated May 23, 2013 (Exhibit “1”) and challenges the sufficiency thereof. It is unclear whether the Defendant contends that the notice (Exhibit “1”) is insufficient because it states two grounds for the termination of the tenancy or because the Plaintiff does not provide specific detail as to the reasons for termination.

The notice (Exhibit “1”) states in relevant part that the Defendant’s tenancy can be terminated “for other good cause” or for “serious or repeated violation of the lease, violation of Federal, State or local law.” The notice further states that the reason for termination of the Defendant’s lease is the Plaintiff’s “desire[] to use the unit for personal or family use or for a purpose other than as a residential unit and/or a business and/or economic reason.” (Exhibit “1”). The

 

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lease does not require that a notice of termination include specific language. (Exhibit “2”). The lease between the parties does not limit that Plaintiff to only one reason for termination. The only requirement set forth in the lease with respect to termination is that the Plaintiff notifies the Defendant of the grounds for which possession is sought. (Exhibit “2,” HAP contract paragraph 8(f)). The court finds that the Plaintiff has caused the Defendant to receive a legally sufficient notice to terminate her tenancy and established a prima facie case for possession, subject to the Defendant’s defenses and counterclaims.

The Defendant has asserted claims of retaliation, discrimination on the basis of her receipt of public or rental assistance and disability, breach of warranty of habitability, violation of G.L. c. 186, sec. 15B, interference with quiet enjoyment based on conditions at the Premises, and violation of G.L. c. 93A.

There was no evidence, testimonial or otherwise to support the Defendant’s claim for discrimination on the basis of her receipt of public assistance or having a disability and judgment will enter for the Plaintiff on this claim.

 

Retaliation

 

Under the retaliation statute, a landlord may not threaten to or take reprisal against a tenant for certain enumerated acts, commonly referred to as protected activities.[3] The only protected activity about which there was any evidence is the Defendant’s communication with the City

 

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[3]The protected action are commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or =finance, which has as its objective the regulation of residential premises or exercising the tenant’s rights to prevent termination of gas or electric service or reporting to the City of Boston Inspectional Services Department (“ISD”) a violation or a suspected violation of any health or building code or of any other municipal bylaw or ordinance, or state or federal law or regulation which has as its objective the regulation of residential premises, or reporting or for complaining of such violation or suspected violation in writing to the landlord or to the agent of the landlord or for organizing or joining a tenants’ union or similar organization or for making or expressing an intention to make, a payment of rent to an organization of unit owners at a condominium pursuant to M. G.L. c. 183A, sec. 6(c).

 

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of Boston Inspectional Services Department (“ISD”).[4] The Defendant testified both that she never called ISD to report conditions at the Premises and that she did call ISD on one occasion, but her call was not returned. The court does not credit this testimony. Accepting without finding that contacting MBHP to request an inspection because of conditions at the Premises qualifies as a protected activity under G.L. c. 186 sec. 18, there was no evidence that the Defendant did so until after she was served with the Summary Process Summons and Complaint in this action.

Therefore, to prevail on her retaliation claim, the Defendant must prove that the Plaintiff retaliated against her. There was no evidence of retaliation and judgment will enter for the Plaintiff on this claim.

 

Breach of Warranty of Habitability

 

To defend against the Plaintiff’s claim for possession and recover monetary damages from the Plaintiff based on a claim of breach of warranty, the Defendant must prove that there was a material breach of the warranty. Material means something of importance. The existence of a material breach of the warranty of habitability is a question of fact to be determined in each case. The statute of limitation with regard to the Plaintiff’s claims of breach of warranty of habitability is six years. (G.L. c. 260, sec. 2). The Defendant is limited to claims arising on or after July 30, 2007.

There is conflicting evidence between the MBHP reports and the testimony of the Defendant and her children. The court credits the evidence presented by MBHP at trial. (Exhibit

 

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[4]The Defendant testified that she complained about conditions at the property to the Plaintiff through text messaging. Accepting that text messaging constitutes a complaint in writing for purposes of the retaliation statute, there was no evidence as to what conditions were identified in these text messages, when they were sent or that the Plaintiff received them. The court does not credit this testimony.

 

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“7”).

There was no evidence that anyone notified the Plaintiff of conditions at the Premises needing repair for any reason from January 1 through November 14, 2007.

By notice dated November 15, 2007, MBHP informed the Plaintiff that that the Premises had failed an annual inspection which took place on November 13, 2007. (Exhibit “7,” notice dated November 15, 2007). This is the first notice to the Plaintiff of the conditions identified therein. A tenant’s obligation to pay rent abates, in whole or in part, as soon as the landlord has knowledge or notice of the existence of material defective conditions at the premises which may endanger or impair the health or safety and well-being of the persons occupying the premises. The Plaintiff was aware of the conditions on November 15, 2007 is responsible for the repair thereof from that date. The repairs were completed on February 29,2008. A notice dated March 3, 2008 informed the Plaintiff that the Premises had passed inspection on February 29, 2013. The court finds that the conditions identified on the November 13, 2007 MBHP inspection report reduced the fair market value of the Premises without defects (the “value”), which the court finds to be $2,000.00 a month, by fifteen percent from November 16, 2007, through February 28, 2008, a period of one hundred and five days and the Defendant is entitled to a rent credit of $1,035.30.[5]

The Premises failed inspection on August 25, 2008, July 2, 2009 and May 13, 2010 (Exhibit “7,” notices dated August 26,2008, July 15, 2009 and May 20, 2010), but the court finds that none of the conditions identified in the MBHP inspection reports issued on those dates rise to the level of a breach of warranty of habitability.

 

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[5]Rent credit is calculated as follows. $2,000.00 a month x 12 months = $24,000.00 ˜ 365 days =$65.75/ day. .15 x $65.75 = $9.86. $9.86 x 105 = $1,035.30.

 

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By notice dated February 9,2012, MBHP informed the Plaintiff that that the Premises had failed an annual inspection which took place on February 8, 2012. (Exhibit “7,” notice dated February 9, 2012). The first notice the Plaintiff had of the conditions was on February 9,2012. He is responsible for the repair thereof from that date. The repairs were completed on April 30, 2013. The court finds that the conditions identified on the February 8,2012 MBHP inspection report reduced the value of the Premises by fifteen percent from February 10, 2012, the date on which the Plaintiff became aware thereof; through April 30, 2012, a period of eighty-one days and the Defendant is entitled to a rent credit of $798.66[6].

By notice dated December 3, 2012, MBHP informed the Plaintiff that that the Premises had failed an annual inspection which took place on November 29, 2013. (Exhibit “9”). The Plaintiff was not aware of the conditions identified on the inspection report dated November 29, 2012 until December 4, 2012. He is responsible for the repair thereof from that date. The re-inspection was cancelled twice (Exhibit “7,” notices dated December 28,2012 and January 29, 2013), but the Defendant did not present any evidence that the repairs were not completed on the original date — January 4, 2013. The court finds that the conditions identified on the November 29, 2012 MBHP inspection report reduced the value of the Premises by fifteen percent from November 30, 2012, the date on which the Plaintiff became aware thereof; through January 4, 2013, a period of thirty-four days and the Defendant is entitled to a rent credit of $325.24.[7]

The Defendant contacted MBHP on July 12, 2013, after receipt of the Summary Process

 

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[6]Rent credit is calculated as follows. $2,000.00 a month x 12 months = $24,000.00 ˜ 365 days =$65.75/ day. .15 x $65.75 = $9.86. $9.86 x 81 = $798.66.

 

[7]Rent credit is calculated as follows. $2,000.00 a month x 12 months = $24,000.00 ˜ 365 days =$65.75/ day. .15 x $65.75 = $9.86. $9.86 x 34= $325.24.

 

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Summons and Complaint in this matter, and requested an inspection of the Premises.[8] The inspection took place on the same date that MBHP found the Premises to be in compliance with its standards. (Exhibit “7,” letter dated July 15, 2013).

There was testimony and photographs of conditions that existed on August 6, 2013 (Exhibit “8”). Accepting without finding the testimony to be true and the photographs to be credible, the there is no evidence, testimonial or otherwise upon which the court could find that the Plaintiff was aware of those conditions at any time prior to the trial as MBHP had found the Premises to meet its standards on July 15, 2013, no entity issued a notice of any violation after July 15, 2013 and there was no evidence that the Defendant informed the Plaintiff of those conditions.

Judgment will enter for the Defendant on the claim for breach of warranty of habitability for monetary damages in the amount of $2,159.20.

Because the Defendant prevailed on this claim, she is entitled to possession of the Premises.

 

Violation of G.L. c. 186, sec. 15B

 

There is no dispute that the Plaintiff accepted a security deposit in the amount of $1,000.00 from the Defendant at the inception of the tenancy. The security deposit remains the property of the tenant throughout the tenancy and the landlord cannot use the security deposit to fund repairs or unpaid rent during the tenancy. There is no dispute that the Plaintiff at divers times during the Defendant’s tenancy, made deductions from the security deposit and the Plaintiff testified that the security deposit was depleted. Based upon these representations, the court

 

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[8]The court notes that the Defendant was served with a copy of the Summary Process Summons and Complaint in this action on July 2, 2013.

 

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finds that if the security deposit was ever placed in an account that complies with the mandates of G.L. c.186, sec. 15B, at some point, prior to terminating the Defendant’s tenancy, the Plaintiff stopped doing so. The Defendant is entitled to the return of her security deposit of $1,000.00. The Defendant is also entitled to triple damages because the Plaintiff did not hold the deposit in the type of account mandated by G.L. c. 186, sec. 15B(7).

The court further finds that the Plaintiff never paid the Defendant the interest that she was owed as a result of the security deposit being held in an interest bearing account. The Defendant is entitled to three times the amount of interest at five percent a year from June 2003 through May 2013, a period of ten years or $1,500.00.

Judgment will enter for the Defendant on this claim for $4,500.00[9] and reasonable attorney’s fees.

 

Interference with Quiet Enjoyment Based on Conditions at the Premises

 

The Plaintiff is liable for interference with quiet enjoyment if the he caused or permitted acts which resulted in substantial disturbance or injury to the Defendant in her peaceful enjoyment of the premises. The Defendant must prove that the Plaintiff’s conduct was at least reckless or negligent. This means that the Defendant must prove that the Plaintiff failed to act reasonably under the circumstances concerning a problem known to the Plaintiff and that the natural and probable consequences of such failure caused the interference with the Defendant’s quiet enjoyment of the Premises. The Plaintiffs conduct and not his intentions determine whether there was a violation of the covenant of quiet enjoyment.

Based on the credible evidence presented at trial, the court cannot find that the Plaintiff’s conduct to be reckless or negligent. Judgment will enter for the Plaintiff on this claim.

 

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[9]$1,500.00 x 3 = $4500.00.

 

 

 

 

 

Docket No.:SUMMARY PROCESS No. 13H84SP004292

Parties:HENRY YOUNG, Plaintiff MALINDA BUCK, Defendant

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:November 19, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This matter was before the court for trial on November 14, 2013. The Plaintiff seeks possession of Unit 2 at 49 W. Cottage Street in the Dorchester neighborhood of Boston (the “Premises”) and monetary damages based on the Defendant’s failure to pay rent. The Defendant filed an answer denying that she owed rent and alleging retaliation, discrimination on the basis of her having children and her relationship to her roommate, breach of warranty of habitability, violation of G.L. c. 93A and violation of G.L. c. 186, sec. 22. The Plaintiff filed an answer to the Defendant’s counterclaims and demanded a jury trial. Even accepting that the jury demand was timely, the parties waived their right to a trial by jury when they failed to object to proceeding to trial on November 14, 2013.

The Defendant also filed a Motion to Dismiss. After review, the Defendant has failed to allege a basis for dismissal in her motion and it is DENIED.

Based on all the credible testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the court finds as follows.

The Plaintiff is the owner of the property at 49 West Cottage Street. At some point in

 

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time he rented the Premises to his daughter Rachel Young. Ms. Young allowed two other persons (Harvey Buck and Isaiah Haynes), to move into the Premises with her, as roommates. At some point Ms. Young vacated and the Defendant took occupancy. All arrangements were made through Ms. Young and there were no communications between the Plaintiff and Defendant relative to the occupancy of the Premises. The Defendant and the other tenants paid the rent to Ms. Young, even after she vacated, and she paid the Plaintiff. The court finds that for the period of time Ms. Young, Harvey Buck, Isaiah Haynes shared the apartment they were tenants at will. When Ms. Young moved out, the others remained, with the Defendant, as tenants at will. Each had the same right to occupy the Premises as the others and the same obligation to pay the rent, as tenants at will are jointly and severally liable for the rent.

The Defendant admits receipt of a notice to quit for non-payment of rent (Exhibit “2”). It is addressed solely to the Defendant. The Plaintiff failed to give notice of termination to at least one other tenant. To terminate a tenancy, a landlord must give legally sufficient notice of termination to all persons who occupy the subject premises as tenants. Monroe v James, Boston Housing Court Docket No. 97H84SP004471 (Winik, J., September 4, 1997). As a result, the Plaintiff has failed to establish that the tenancy at will was properly terminated and he is not entitled to possession. Judgment will enter for the defendant for possession.

The Plaintiff, who bears the burden of proof, has no knowledge of the amount of the rent for the Premises and has no records to establish what rent has been paid. While there are receipts from Rachel Young to the Defendant, (Exhibits “3” and “8”), without additional testimony to establish the full amount of the rent, the court cannot find that the Defendant has failed to pay the rent to which the landlord is entitled. The Plaintiff’s claim for unpaid rent is DISMISSED, with-

 

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out prejudice.

The Defendant has asserted counterclaims for retaliation, discrimination, breach of warranty of habitability, violation of G.L. c. 93A and violation of G.L. c. 186, sec. 22. She has the burden of proof with respect to these claims.

The Defendant’s claim for retaliation is based on an allegation that her tenancy was terminated as a result of Harvey Buck contacting the City of Boston Inspectional Services Department to report conditions that violated the State Sanitary Code. Because this case was commenced for non-payment of rent, the Defendant is not entitled to the presumption of retaliation unless she can show that the Plaintiff was aware of the conditions before she was behind in her rent. She can still assert the claim, but must provide affirmative evidence of retaliation. There was no such evidence at trial. Judgment will enter for the Plaintiff on this claim.

The Defendant has also asserted a counterclaim based on allegations that the Plaintiff discriminated against her because she has children and because she has a relationship to a roommate. The Defendant presented no facts to establish that she has children or the nature of her relationship to any of her roommates, other than Harvey Buck who is her brother. The Defendant’s relationship to Harvey Buck cannot form the basis for a claim of discrimination. In addition, the Defendant presented no evidence, testimonial or otherwise, that would support a claim of discrimination. Judgment will enter for the Plaintiff on this claim.

Because there was no evidence with respect to damages at trial, the Defendant’s claim for breach of warranty of habitability is DISMISSED, without prejudice.

The Defendant presented no evidence that the Plaintiff is engaged in trade or commerce, the sine qua non of a claim for violation of G.L. c. 93A and judgment will enter for the Plaintiff

 

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on this claim.

The Defendant also presented no evidence to support her claim that she was required to pay for water service to the Premises. Judgment will enter for the Plaintiff on this claim.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that

 

1.The Defendant’s Motion to Dismiss is DENIED.

 

2.Judgment enter for the Defendant for possession.

 

3.The Plaintiffs claim for unpaid rent is DISMISSED, without prejudice.

 

4.Judgment enter for the Plaintiff on the Defendant’s claim for retaliation.

 

5.Judgment enter for the Plaintiff on the Defendant’s claim for discrimination.

 

6.The Defendant’s claim for breach of warranty of habitability is DISMISSED, without prejudice.

 

7.Judgment enter for the Plaintiff on the Defendant’s claim of violation of G.L. c. 93A.

 

8.Judgment enter for the Plaintiff on the Defendant’s claim for violation of G.L. c. 186, sec. 22.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

November 19, 2013

 

cc:Hodges Brown, Esquire

Malinda Buck

 

 

 

 

Docket No.:SUMMARY PROCESS NO. 12H84SP000459

Parties:BANK UNITED, Plaintiff v. CATHERINE RAONA SMALL-QUARATIELLO and JAMES E. SMALL Defendants

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:January 3, 2013

BOSTON DIVISION

ORDER

 

This matter was before the court on November 15, 2012 with respect to the Plaintiff’s Motion for Summary Judgment. For the reasons set forth herein, the Plaintiffs motion is ALLOWED.

The Plaintiff seeks to recover possession of the single family home at 41 Winthrop Street in the Roxbury neighborhood of Boston (the “Premises”) after foreclosure. Catherine Raona Small-Quaratiello filed an answer alleging retaliation, breach of warranty of habitability, interference with quiet enjoyment, violation of a bona fide tenancy and lack of just cause, failure to comply with G.L. c. 186A, failure to comply with the federal Protecting Tenants at Foreclosure Act and lack of a superior right to possession. The Defendant James E. Small filed an answer alleging violation of G.L. c. 93A relative to the mortgage which the Spellers granted to the Plaintiff.

 

Case History

 

The case was commenced in the Roxbury Division of the Boston Municipal Court on January 17, 2012.

 

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James E. Small filed an Answer[1] and a Notice of Transfer on January 23, 2012. The answer and discovery filed by Catherine Raona Small-Quaratiello[2] were filed on January 26, 2012, along with a Notice of Transfer to this court. The case was transferred to this court on February 7, 2012. The Plaintiff filed a Motion for Summary Judgment, on October 19, 2012, it was scheduled for a hearing on November 1, 2012. The parties agreed to continue the hearing to November 15, 2012.

 

Standard for Summary Judgment

 

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), Cassesso v Commissioner of Corrections, 390 Mass. 419, 422 (1983), Community National Bank v Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue and its entitlement to judgment as a matter of law. Pederson v Time, Inc., 404 Mass. 14, 16 – 17 (1989). In viewing the record before it, the court reviews “the evidence in the light most favorable to the non-moving party. Donaldson v Farrakhan, 436 Mass. 94, 96 (2002).

In weighing the merits of a summary judgment motion, the court must address two questions: whether the factual disputes are genuine, and whether a fact genuinely in dispute is material.

 

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[1] The answer filed by Mr. Small was filed for himself and five other persons, none of whom are parties to this matter. He did not seek to join them as parties and as a result, their claims were dismissed. Those parties, Ida Small Speller, Depriest Speller, John D. Small, Freeda Small Rawson and Lisa Small Lawyer, together with the Defendants herein, are plaintiffs in the matter of Speller, et. al. v MERS, a matter now pending in the Suffolk Superior Court (SUCV2009-0045 1).

 

[2] With the exception of the limited appearances of the Harvard Legal Aid Bureau, Ms. Small Quaratiello is self-represented. James, E. Small, although an attorney licensed to practice law in the Commonwealth of Massachusetts, has not entered an appearance on behalf of Ms. Small Quaratiello.

 

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Town of Norwood v Adams-Russell Co., Inc., 401 Mass. 677, 683 (1988) citing Anderson v Liberty Lobby, Inc., 477 U.S. 242, 247 – 248 (1986). The substantive law will identify which facts are material and such facts are those which might affect the outcome of the suit under the governing law and preclude the entry of summary judgment. Anderson v Liberty Lobby, Inc., 477 U.S. at 248, citing Carey v New England Organ Bank, 446 Mass. 270, 278 (2006), Molly A. v Commissioner of the Department of Mental Retardation, 69 Mass.App.Ct. 267, 268 n. 5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson v Liberty Lobby, Inc., 477 U.S. at 248.

The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v Eissner, 405 Mass. 207, 209 (1976). To defeat summary judgment the non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Kourouvacilis v General Motors Corp., 410 Mass. 706, 714 (1991). “Conclusory statements, general denials and factual allegations not based on personal knowledge [are] insufficient.” Cullen Enterprises, Inc. v Massachusetts Property Insurance Underwriting Association, 399 Mass. 886, 890 (1987) quoting Madsen v Erwin, 395 Mass. 715, 721 (1985).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney General v Bailey, 386 Mass. 367, 371 (1982). The court does not “pass upon the credibility of witnesses or the weight

 

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of the evidence or make its own decision of facts.” Attorney General v Bailey, 386 Mass. at 370. However, the court may only consider evidence which meets the requirements of Mass.R.Civ.P. 56(e). That evidence must come from “pleadings, depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with … affidavits, if any.” Mass. R.Civ.P. 56(c).

 

Material Facts about which there is no Genuine Dispute

 

At some point prior to June 4, 2007, Depriest and Ida Speller acquired the Premises. On June 4, 2007, the Spellers granted a mortgage to MERS to secure a loan from the Plaintiff. The mortgage was recorded on June 4, 2007 in the Suffolk Registry of Deeds at Book 41915, Page 132. (Exhibit “A” to the Plaintiff’s Motion for Summary Judgment and Catherine Small-Quaratiello’s Opposition to Plaintiff’s Motion for Summary Judgment, Exhibit “B” to Mr. Small’s Opposition to Motion for Summary Judgment). On June 5, 2007, the Spellers recorded a deed dated December 30, 2002, transferring their interest in the Premises to the Defendants and four other persons not parties hereto. (Exhibit “F” to the Plaintiff’s Motion for Summary Judgment and Catherine Small-Quaratiello’s Opposition to Plaintiffs Motion for Summary Judgment, Exhibit “A” to Mr. Small’s Opposition to Motion for Summary Judgment). As a matter of law, the Defendants took title subject to the mortgage signed on June 4, 2007. The dispute relative to the corrected mortgage is not genuine or material to the matter before the court. The correction to properly reflect the loan amount on June 13, 2012 did not affect validity of the mortgage or the fact that the Defendant’s title was subject thereto.

There is no dispute that sometime after June 2007, the Spellers became delinquent in the mortgage payments. The mortgage was assigned to the Plaintiff on March 26 2009. (Exhibit `B”

 

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to the Plaintiff’s Motion for Summary Judgment). Subsequent to the assignment of the mortgage to the Plaintiff, the Premises were sold at auction on October 23, 2009. (See Affidavit of Sale appended to Plaintiff’s Motion for Summary Judgment as Exhibit “C”).

 

Discussion

 

Because the two defendants have answered separately, asserted different claims and have responded to the instant motion with separate and different oppositions, the court will address the arguments of each defendant separately.

 

James E. Small

 

The Answer filed by Mr. Small denies that the Plaintiff is entitled to possession of the property and asserts defenses of failure to state a claim upon which relief can be granted, the existence of a prior pending action, unclean hands, estoppel and the statute of frauds. He also asserts counterclaims alleging unfair and deceptive actions with respect to the negotiations between the Plaintiff and the Spellers relative to the mortgage and that such actions were in violation of G.L. c. 93A. Mr. Small was not a party to the mortgage and has no standing to raise these issue. (Exhibit “A” to the Plaintiffs Motion for Summary Judgment, Exhibit `B” to Mr. Small’s Opposition to Motion for Summary Judgment). To the extent that any of these claims survived the Plaintiff s Motion to Strike Counterclaims, same are DISMISSED.

Mr. Small’s counterclaims having been dismissed, the only issue before the court relative to him is the Plaintiffs case in chief.

To prevail on a summary process action, a plaintiff must prove a right to possession of the subject property which is superior to that of the defendant and that the defendant’s right to continued occupancy was properly terminated.

 

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If a plaintiff can show that the foreclosure was properly conducted, it can establish its prima facie case. An affidavit that meets the requirements of G. L. c. 244, sec. 15 is evidence that the power of sale was duly executed and constitutes prima facie evidence of the plaintiff’s case in chief. See Federal National Mortgage Association v Hendricks, 363 Mass. 635, 641 – 642 (2012). The Affidavit of Sale filed by the Plaintiff relative to the foreclosure in this matter complies with the requirements of G. L. c. 244, sec. 15, which requires the

 

person selling, or the attorney duly authorized by a writing [to] , after the sale, cause a copy of the notice and his affidavit, fully and particularly stating his acts, or the acts of his principal… , to be recorded in the registry of deeds for the county or district where the land lies, with a note or reference thereto on the margin of the record of the mortgage deed, if it is recorded in the same registry.

 

Once a plaintiff makes a prima facie case, the burden shifts to the opposing party to demonstrate, through the use of affidavits or by the depositions, answers to interrogatories, and admissions on file or some other evidence which would be admissible at trial, specific facts showing that there is a genuine issue for trial. If a defendant fails to show the existence of a genuine issue of material fact in response to a motion for summary judgment by contesting factually a prima facie case of compliance with G. L. c. 244, sec. 14,[3] such failure generally should result in judgment for the

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[3] G,L. c. 244, sec. 14 provides in relevant part

 

The mortgagee … may, upon breach of condition and without action, do all the acts authorized or required by the power; but no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been published once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper, if any, published in the town where the land lies or in a newspaper with general circulation in the town where the land lies and notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed at least fourteen days prior to the date of sale to said owner or owners to the address set forth in section sixty-one of chapter one hundred and eighty-five, if the land is then registered or, in the case of unregistered land, to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage, if any, or if none, to the address of the owner or owners as given on his deed or on the petition for probate by which he acquired title, if any, or if in either case no

 

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plaintiff. Federal National Mortgage Association v Hendricks, 363 Mass. at 642 (citations omitted).

Mr. Small offers no admissible evidence to dispute the Plaintiff’s prima facie case, only argument, and the court finds that the Plaintiff has established a right to possession of the subject property which is superior to that of Mr. Small.

In addition to establishing a right to possession, a plaintiff must show that the defendant’s right to occupy the subject property was properly terminated. The Plaintiff submits a copy of a notice to quit and vacate the Premises dated December 12, 2011 and delivered to James Small by constable on December 14, 2012. (Exhibit “D” appended to Plaintiff’s Motion for Summary Judgment). The constable’s return of service state that a copy of the notice was delivered to Mr. Small’s last and usual place of abode, the Premises, and mailed first class mail. (Exhibit “D” appended to Plaintiff’s Motion for Summary Judgment). Mr. Small submits no information to dispute the return of service and does not challenge the sufficiency of the notice.

 

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address appears, then to the address to which the tax collector last sent the tax bill for the mortgaged premises to be sold, or if no tax bill has been sent for the last preceding three years, then to the address of any of the parcels of property in the name of said owner of record which are to be sold under the power of sale and unless a copy of said notice of sale has been sent by registered mail to all persons of record as of thirty days prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed, said notice to be mailed at least fourteen days prior to the date of sale to each such person at the address of such person set forth in any document evidencing the interest or to the last address of such person known to the mortgagee. Any person of record as of thirty days prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed may waive at any time, whether prior or subsequent to the date of sale, the right to receive notice by mail to such person under this section and such waiver shall be deemed to constitute compliance with such notice requirement for all purposes. If no newspaper is published in such town, or if there is no newspaper with general circulation in the town where the land lies, notice may be published in a newspaper published in the county where the land lies, and this provision shall be implied in every power of sale mortgage in which it is not expressly set forth. A newspaper which by its title page purports to be printed or published in such town, city or county, and having a circulation therein, shall be sufficient for the purpose.

 

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Based on the foregoing, there is no question of material fact to be resolved by a fact finder relative to James E. Small.

 

Catherine Raona Small-Quaratiello

 

The defenses and counterclaims asserted by Ms. Small-Quaratiello are based on her contention that she is a bona fide tenant entitled to the protections of G.L. c. 186A and the federal Protecting Tenants at Foreclosure Act. She continues to assert this position in her opposition to the Plaintiff’s Motion for Summary Judgment. If Ms. Small-Quaratiello can establish that she is a bona-fide tenant, she is entitled to assert defenses under G.L. c. 239, sec. 8A. To prevail on her claim, Ms. Small-Quaratiello must show, with admissible evidence, that her tenancy is the result of an arm’s length transaction.

To support her position, Ms. Small-Quaratiello relies on her affidavit (Exhibit “C” to Defendant Catherine Small-Quaratiello’s Opposition to Plaintiff’s Motion for Summary Judgment), copies of money orders (Exhibit “G” to Defendant Catherine Small-Quaratiello’s Opposition to Plaintiff’s Motion for Summary Judgment), copies of the front of checks drawn on an account with Citizen’s Bank in 2006 and 2007 (Exhibit “H” to Defendant Catherine Small-Quaratiello’s Opposition to Plaintiffs Motion for Summary Judgment) and a copy of a document entitled “Boston Public Schools Residency Affidavit — Landlord/Shared Tenancies,” dated January 23, 2006 and purportedly signed by one “Ida P. Speller.” (Exhibit “r’ to Defendant Catherine Small-Quaratiello’s Opposition to Plaintiff’s Motion for Summary Judgment). The only document which the court can consider in opposition to the Plaintiff’s Motion for Summary Judgment is Ms. Small-Quaratiello’s affidavit. The other documents, the copies of money orders, the front of checks drawn on an account with Citizen’s Bank in 2006 and 2007 and the copy of a document

 

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entitled “Boston Public Schools Residency Affidavit — Landlord/Shared Tenancies,” are not in the form of admissible evidence and cannot be considered to create a question of fact for the fact finder. Godbout v Cousens, 396 Mass. 254, 261 (1985).

Ms. Small-Quaratiello’s affidavit states that in 2002 she and her sister, Ida Speller, agreed that Ms. Small-Quaratiello would rent a room and share the bathroom and kitchen with other tenants. The rent was $400.00 a month and the rent was increased to $500.00 in 2004 and to $1,000.00 in 2007. The agreement to pay rent does not establish an arms length transaction establishing a tenancy. Ms. Small-Quaratiello has failed to meet her burden of proof that she is a bona-fide tenant at the Premises and her claims of breach of warranty of habitability and interference with quiet enjoyment are DISMISSED.[4]

Ms. Small-Quaratiello’s claim of tenancy having been resolved, the issues before the court are whether this Plaintiff can establish a right to possession of the subject property which is superior to that of the Ms. Small-Quaratiello and that Ms. Small-Quaratiello’s right to continued occupancy was properly terminated.

The Plaintiff has established its case in chief by the filing of the affidavit of sale. (See Federal National Mortgage Association v Hendricks, 363 Mass. 635, 641 – 642 (2012)). The burden is now on Ms. Small-Quaratiello to show, with admissible evidence, the existence of a material question of fact. The affidavit of Mr. Oh does not create a question by simply stating he did not find the notice of acceleration and right to cure. Mere speculation does not create a question of fact.

 

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[4] Ms. Small-Quaratiello also failed to present any evidence that her claims of retaliation and / or violation of G.L. c. 93A could defeat the Plaintiffs Motion for Summary Judgment and those claims are also DISMISSED.

 

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Ms. Small-Quaratiello admits that she received the notice terminating her right to occupy the Premises (See affidavit attached as Exhibit “C” to Defendant Catherine Small-Quaratiello’s Opposition to Plaintiff’s Motion for Summary Judgment) and does not argue that it is not sufficient to terminate her right to continued occupancy thereof.

For these reasons, the Plaintiff’s Motion for Summary Judgment is ALLOWED.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

January 3, 2013

 

cc:Matthew Braucher, Esquire

James E. Small, Jr., Esquire

Catherine Raona Small-Quaratiello

 

 
Docket No.:SUMMARY PROCESS No. 12H84SP003801

Parties:CRM PROPERTY MANAGEMENT CORP., Plaintiff LUZ GONZALEZ, ANACLETO GONZALEZ, Defendants

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:December 30, 2013

BOSTON DIVISION

ORDER

 

This matter was before the court on December 19, 2013 with respect to the Defendants’ request for attorney’s fees permitted only as to the claim of violation of G.L. c. 93A, which arises out of the claim for breach of warranty of habitability. After hearing, the court finds that the Defendants are entitled to recover attorney’s fees in the amount of $5,250.00 representing thirty hours of counsel’s time at $175.00 an hour.

The basic measure of reasonable attorney’s fees is a fair market rate for the time reasonably spent preparing and litigating a matter. Killeen v Westban Hotel Venture, LP, 69 Mass.App. Ct. 784, 790 (2007) citing Stowe v Bologna, 417 Mass. 199, 203 (1994) quoting from Fontaine v Ebtec Corp., 415 Mass. 309, 326 (1993). See also Stratos v Department of Pub. Welfare, 387 Mass. 312, 322 (1982). This approach to fee calculations is known as the “lodestar” approach. Killeen v Westban Hotel Venture, LP, 69 Mass.App.Ct. at 790 (citations omitted). The second component of the basic measure amount is the amount of a reasonable hourly rate. This amount should be the average rate in the community for similar work by attorneys with the same experience. Killeen, 69 Mass.App.Ct. at 790 – 791 citing Stratos, 387 Mass. at 323 – 324, and cases cit-

 

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ed.

To determine the amount of time reasonably necessary for a given case, the court begins with the actual hours reportedly spent on each task. Dewy v. City of Gloucester, 781 F. Supp. 61, 63 – 64 (1992) citing Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S. Ct. 1933, 1939 (1983); see also Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984) (same). The party seeking fees has a duty to submit detailed and contemporaneous time records to document the hours spent on the case. Wojtkowski v. Cade, 725 F.2d 127, 130-31 (1st Cir.1984). Copies of the actual time records should be submitted, but were not in this case. Grendel’s Den, 749 F.2d at 952. Counsel must provide a full and specific accounting of their time, including details of the actual work performed by each attorney to justify the fees sought.

The Defendants assert that they are entitled to recover for 71.0833 hours of their attorney’s time. While it is clear that Mr. Sprouse represented his clients with competence and obvious dedication, the law on which the Defendants’ claims are based is well-settled. While the case was tried over a period of two days with one day in between, much of the time for which compensation is requested is for administrative tasks, which, even if performed by a sole practitioner, are incorporated in an hourly rate and cannot be billed as legal work. Finally, there is little detail in the information provided to the court with respect to the tasks undertaken; the spreadsheet reflects more of a block billing format than the detail necessary to support a request for attorney’s fees. However, after review, the court finds that the Defendants are entitled to recover for thirty hours of their attorney’s time.

The second component of the basic measure amount is the amount of a reasonable hourly rate. This amount should be the average rate in the community for similar work by attorneys

 

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with the same experience. Killeen, 69 Mass. App. Ct. at 790 -791 citing Stratos, 387 Mass. at 323-324, and cases cited. Plaintiff’s counsel has no opposition to the hourly rate of $175.00 an hour and the court will accept this rate. This results in an award of attorney’s fees in the amount of $5,250.00.[1]

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

December 30, 2013

 

cc:Robert D. Russo, Esquire

William Sprouse, Esquire

 

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[1]30 x $175.00 = $5,250.00

 

 

 

 

Docket No.:CIVIL ACTION No. 08H84CV000497

Parties:CITY OF BOSTON INSPECTIONAL SERVICES DEPARTMENT BUILDING DEPARTMENT, Plaintiff V MONIQUE MAN-GEORGES, Defendant / Third Party Plaintiff V AUGUSTUS OKOYE and GUSTEN CORPORATION, Third Party Defendants

Judge:/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

Date:June 18, 2013

BOSTON DIVISION

ORDER AND FINAL JUDGMENT

 

This matter was before the court on May 17, 2013 with respect to the Motion for Attorney’s Fees, Motion for Entry of Default Judgment against Gusten Corporation and Motion for Entry of Final Judgment against Okoye and Gusten Corporation in favor of Ms. Jean-Georges. After hearing, the court finds as follows.

 

Procedural History

 

In August 2007, the Plaintiff filed two complaints against Ms. Jean-Georges to determine whether probable cause existed to cause process to issue for violations of the State Building Code at 94R George Street in the Roxbury neighborhood of Boston.[1] Process issued and two

 

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[1]Specifically, the Plaintiff alleged the existence of an unsafe structure (780 CMR 121, et seq.) arising out of an unfinished two-story wood framed addition to the building at 94R George Street in Roxbury (07H84CR000 607) and the failure to comply with the conditions of a building permit by changing the proposed configuration of the footprint for the foundation (07H84CR000608).

 

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criminal actions followed. (07H84CR000607 and 07H84CR000 608). In 2008, a third complaint was filed against Ms. Jean-Georges for violations of the State Sanitary Code.[2] Process issued and a third criminal action followed. (08H84CR000468).

Thereafter, 07H84CR000607 and 08H84CR000468 were consolidated and converted to a civil action, 08H84CV000496. The remaining criminal case, 07H84CR000608, was deemed to be civil, but a separate case was opened, 00H84CV000497. The cases proceeded tangentially and were consolidated under one docket number, 00H84CV000497, in October 2010.

Ms. Jean-Georges filed a motion to allow her to file a third-party complaint against Mr. Okoye, her contractor, in the civil actions, 00H84CV000496 and 00H84CV000497. Mr. Okoye filed an answer. Gusten Corporation was added as the second third party defendant in July 2010. Gusten Corporation filed an answer and counterclaim.

The third party complaint seeks monetary damages and injunctive relief from Mr. Okoye and Gusten Corporation based on Ms. Jean-Georges’ claims of breach of contract, misrepresentation / negligence, violation of the Home Improvement Contractor Law, G. L. c. 142A and unfair and deceptive trade and business practices pursuant to G. L. c. 93A. Civil Action 08H84CV000 497 was scheduled for a pretrial conference on April 13, 2011 and a jury trial on April 20, 2011.

The parties submitted a joint pretrial memorandum, signed by all parties.[3] On the morning of trial, the court allowed Ms. Jean-Georges’ Motion in Limine with respect to violation of G.L. c. 142A.[4] Ms. Jean-Georges submitted a certified copy of the January 29, 2008 decision of

 

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[2]The Plaintiff alleged that the subject property was vacant and in danger of collapse in violation of 105 CMR 410.500.

 

[3]Gusten Corporation was represented by counsel at the pretrial conference and on the day of trial.

 

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the Board of Building Regulations and Standards in the matter of Monique Jean-Georges v Augustus Okoye and Gusten Corporation, Docket 2007-247, 2007-287 and 2007-246,. The court (Muirhead, J.) found that, with respect to the claim of violation of G.L. c. 142, there was no question of fact for the fact finder (jury).

The case was next before the court on January 26, 2012 with respect to Ms. Jean-Georges’ “Motion for Entry of Partial Summary Judgment on Chapter 93A Count, Entry of Summary Judgment of Single Damages under Chapter 142A and Double Damages under Chapter 93A against Third-Party Defendants and Dismissal of Gusten Corporation’s “Counterclaim for Misrepresentation [sic].” By order dated February 24, 2012, the court (Muirhead, J.) held that Ms. Jean-Georges had established that the Board of Building Regulations and Standards, decision established that Mr. Okoye had violated G.L. c. 142A and, because he failed to appeal the decision, the issue was already decided and there was nothing to put to the jury. The court further found that, while there was no evidence of damages presented by Ms. Jean-Georges, the price for the work which formed the basis of the claim for violation of G.L. c. 142A was $100,000.00 and awarded damages against Augustus Okoye in the amount of $100,000.00 on the claim. Finally, the court found that the violation of G.L. c. 142A constitutes a per se violation of. G.L. c. 93A but declined to double or treble the damages. However, under G.L. c. 93A, Ms. Jean-Georges is entitled to reasonable attorney’s fees and costs.

The court ordered that Ms. Jean-Georges claims against Gusten Corporation to go to trial.[5]

 

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[4]Although Gusten Corporation was a party to the proceeding before the Board of Building Regulations and Standards, there was no similar finding against Gusten.

 

[5]Those claims are of breach of contract, misrepresentation / negligence and unfair and deceptive trade and business practices pursuant to G. L. c. 93A arising out of those claims against Mr. Okoye, as well as the claims of breach of

 

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A pretrial conference was held on July 16, 2012, at which time Ms. Jean-Georges and Mr. Okoye stipulated to the dismissal of the claims of breach of contract and misrepresentation / negligence and the claim for injunctive relief against Mr. Okoye.

Gusten Corporation failed to appear for trial and was defaulted; Gusten was also non-suited on its counterclaim against Ms. Jean-Georges. The instant motion for entry of default judgment and assessment of damages followed.

 

Matters Before the Court

 

Motion for Entry of Default Judgment against Gusten Corporation

 

The entry of default judgment is governed by Mass.R.Civ.P. 55(b), which, provides, in relevant part, that judgment by default may be entered (in courts other than a District Court), by a clerk if the claim is for a sum certain or for a sum which can by computation be made certain and where the request is accompanied by an affidavit of the amount due. In all other cases

 

the party entitled to a judgment by default shall apply to the court therefore.

 

###

 

If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper. . . .

 

Ms. Jean-Georges’ claims against Gusten Corporation are claims in which it is necessary to take an account or to determine the amount of damages, but there was no evidence of damages presented to the court, other than the finding of Mr. Okoye’s violation of G.L. c.142A and without evidence of damages against Gusten Corp. or evidence to pierce the corporate veil and estab-

 

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contract, misrepresentation / negligence, violation of the Home Improvement Contractor Law, G. L. c. 142A and unfair and deceptive trade and business practices pursuant to G. L. c. 93A claims against Gusten Corp.

 

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lish that Gusten Corp. was a sham, default judgment may enter but the court is not in a position to assess damages against Gusten Corporation.

 

Motion for Attorney’s Fees

 

It is pursuant to the claim for violation of G.L. c. 93A that Ms. Jean-Georges seeks $16,725.00 in attorney’s fees and $398.38 in costs.

The basic measure of reasonable attorney’s fees is a fair market rate for the time reasonably spent preparing and litigating a matter. Killeen v Westban Hotel Venture, LP, 69 Mass.App. Ct. 784, 790 (2007) citing Stowe v Bologna, 417 Mass. 199, 203 (1994), quoting from Fontaine v Ebtec Corp., 415 Mass. 309, 326 (1993). See also Stratos v Department of Pub. Welfare, 387 Mass. 312, 322 (1982). This approach to fee calculations is known as the “lodestar” approach, Killeen v Westban Hotel Venture, LP, 69 Mass.App.Ct. at 790 (citations omitted). The proper method for determining the lodestar was explained succinctly in Stowe v. Bologna, 417 Mass. at 203-204.

To determine the amount of time reasonably expended on the case, the court begins with a review of the amount of time documented by the attorney. Killeen, 69 Mass.App.Ct. At 790 – 791 citing Stratos, 387 Mass. at 322 – 323. Then the judge decides whether this amount of time was reasonably expended. Id., and cases cited. To determine the amount of time reasonably necessary for a given case, the court reviews the actual hours reportedly spent on each task. Decoy v City of Gloucester, 781 F. Supp. 61, 63 – 64(1992) citing Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939 (1983); see also Grendel’s Den, Inc. v Larkin, 749 F.2d 945, 950 (1st Cir.1984) (same). The party seeking fees has a duty to submit detailed and contemporaneous time records to document the hours spent on the case. Wojtkowski v Cade, 725 F.2d 127, 130 – 31

 

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(1st Cir.1984). Copies of the actual time records should be submitted, but were not in this case. Grendel’s Den, 749 F.2d at 952. Without actual time records, counsel must provide a full and specific accounting of their time, including details of the actual work performed. Counsel in this case has submitted no details of his work.

Mr. Shapiro seeks to recover for 55.75 hours of time, but fails to provide any detail relative to the work performed; there is no description of the service provided to his client. The court recognizes that Attorney Shapiro represented his client with competence and obvious dedication, but counsel does little to justify the fees sought. While it is true that the time for which he seeks to recover dates back to 2008, that is not a reason not to provide contemporaneous time records; in fact it shows a greater need for such records. Based on the information provided by Mr. Shapiro, the court finds that counsel reasonably expended thirty hours of time on this case.

The court does not doubt that an hourly rate of $300.00 may be reasonable in other matters where the claims are more complex. The claims in this case were not complex or difficult and, given the nature of the claims, the court finds $250.00 to be a more reasonable rate for skillful and competent representation in this case. This rate is also in line with the average rate charged by other experienced and skillful attorneys who litigate these same claims on a regular basis in this Court.

Based on the foregoing, the court finds that the Defendant is entitled to recover attorney’s fees in the amount of $7,500.00.

Ms. Jean-Georges further seeks $398.38 in costs for the services of her expert, the cost of federal express and sheriffs fees. While the Defendant is entitled to recover costs attendant to the claim on which she prevailed, the costs of Federal Express Services are part of the attorney’s

 

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overhead and built in to the hourly rate. With respect to her other costs, there is no affidavit or invoice setting forth the service provided. Without such information the court cannot find that the Defendant is entitled to recover the costs requested.

 

ORDER FOR JUDGMENT

 

Based on the information provided to the court as part of the motion for summary judgment and the default of the Gusten Corporation, trial in light of the governing law, it is ORDERED that

 

1.Judgment enter for Ms. Jean-Georges against Augustus Okoye for damages in the amount of $100,000.00 on her claim for violation of G.L. c. 142A;

2.Judgment enter for Ms. Jean-Georges against Augustus Okoye on her claim for violation of G.L. c. 93A; the court declines to award further damages but the Defendant may recover $7,500.00 in reasonable attorney’s fees.

3.Judgment enter for Ms. Jean-Georges against the Gusten Corp, but the court does not award damages.

4.The claim of Gusten Corporation against Ms. Jean-Georges is DISMISSED, with prejudice.

 

SO ORDERED.

/s/ MARYLOU MUIRHEAD, ASSOCIATE JUSTICE

June 18, 2013

 

cc:Edward Coburn, Esquire

Robert Shapiro, Esquire

Godson Anosike Esquire

Augustus Okoye